QQDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

QQDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 875 (14 April 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2374
Re:QQDT
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Linda Kirk
Date:14 April 2021
Place:Sydney

The Reviewable Decision dated 16 April 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside; and in substitution, the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of that Act.
..............................[sgd]..........................................
Senior Member Linda Kirk
Catchwords
VISA CANCELLATION – decision not to revoke cancellation under s 501CA – whether the applicant passes the character test – whether there is another reason for the Mandatory Visa Cancellation Decision to be revoked – best interests of minor children – strength, nature and duration of ties – extent of impediments if removed – reviewable decision set aside and substituted.
Legislation
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
Cases
FYBR and Minister for Home Affairs [2019] FCAFC 185
Home Affairs v Buadromo [2018] FCAFC 151
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
[redacted]
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection[2018] FCA 594
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
14 April 2021
BACKGROUND

QQDT (‘the Applicant’) is a 23 year old citizen of New Zealand who first arrived in Australia on 8 August 1998 at the age of 13 months. Prior to its cancellation, the Applicant held a Special Category (Temporary) (Class TY) (Subclass 444) visa (‘the visa’) granted on 20 October 1998.
On 2 August 2018, the Applicant was convicted in the District Court of New South Wales for the offence of Robbery in company and on 18 January 2019 sentenced to four years’ imprisonment, with a 27-month non-parole period.[1]
[1] Exhibit R1, G4, 30.
On 21 March 2019 the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in s 501(6) of the Act by virtue of the term of imprisonment referred to above. At the time the Applicant was serving a sentence of full-time imprisonment at Oberon Correctional Centre in New South Wales in New South Wales.
On 3 April 2019, the Applicant requested in writing revocation of the Mandatory Visa Cancellation Decision.[2]
[2] Exhibit R1, G7, 49.
On 16 April 2020, a delegate of the Respondent decided, pursuant to s 501CA(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[3]
[3] Exhibit R1, G3, 12.
On 24 April 2020, the Applicant applied to the Tribunal (‘the first Tribunal’) for review of the Reviewable Decision under ss 500(1)(ba) of the Act.[4]
[4] Exhibit R1, G1, 1.
On 10 July 2020 the first Tribunal made a decision to affirm the Reviewable Decision.
The Applicant sought review of the first Tribunal’s decision by the Federal Court. On 7 October 2020, Lee J made orders quashing the decision of the first Tribunal and remitting the matter to the Tribunal, differently constituted, for determination according to law.[5] In summary, His Honour found that the Tribunal committed a material jurisdictional error in failing to have regard to the material placed before it concerning the best interests of minor children in Australia as required by clause 13.2 of Ministerial Direction No. 79.[6]
[5] [redacted]
[6] [redacted] [8], [13].
The matter was remitted to the Tribunal and heard by it as presently constituted at a hearing on 11 and 12 March 2021. The Applicant attended the hearing by video-conference from Christmas Island Immigration Detention Centre and gave oral evidence.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions dated 25 February 2021 (‘Respondent’s SFIC’);
·Section 501 G-Documents filed 22 January 2021 (G1-G19, 167 pages) (‘Exhibit R1’);
·Respondent’s Tender Bundle (‘Exhibit R2’);
·Respondent’s Supplementary Tender Bundle (‘Exhibit R3’);
·Applicant’s Statement of Facts, Issues and Contentions dated 25 May 2020 (‘Applicant’s Statements of Facts. Issues and Contentions’);
·Applicant’s Statement in Reply dated 16 June 2020 (‘Applicant’s statement in reply’);
·Statement from Applicant’s partner TH dated 18 May 2020 (‘Exhibit A1’)
·Statement from Applicant’s partner TH dated 26 November 2020 (‘Exhibit A2’)
·Statement from Applicant’s sister BR dated 13 October 2020 (‘Exhibit A3)
·Statement from Applicant’s brother LK dated 29 October 2020 (‘Exhibit A4’)
·Statement from the Applicant dated 22 February 2021 (‘Exhibit A5’)
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)     …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the Mandatory Visa Cancellation Decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
Paragraph 6.2(1) of the General Guidance provides:
The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The other considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties [to Australia];
(c)       Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[7] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Early years
The Applicant was born in New Zealand in July 1997.[9] He came to Australia with his parents and younger brother in August 1998 when he was aged 13 months.[10] He was granted a Class TY Subclass 444 Special Category (Temporary) visa on 20 October 1998.[11]
[9] Exhibit R1, G3, 12
[10] Transcript, 117.
[11] Exhibit R1, G14, 95.
The Applicant and his family initially lived in in [redacted] Sydney’s south western suburbs.[12] His parents separated when he was about three years old.[13] Following his parents’ divorce, the Applicant’s mother moved to Brisbane. The Applicant remained living with his father and his stepmother in [redacted].[14] His father drank alcohol to excess and was violent towards his children including the Applicant.[15]
[12] Transcript, 117
[13] Transcript, 117.
[14] Transcript, 117.
[15] Exhibit R1, G5, 39
The Applicant was expelled from school for fighting when he was about 15 years old.[16] After he left school he moved to Queensland where he lived for a year with his mother and grandparents.[17] In 2016 he returned to Sydney and resumed living with his father and stepmother in [redacted].[18] It was at about this time that he started to smoke marijuana, which he did about four days a week, and to drink alcohol.[19]
[16] Transcript, 118.
[17] Transcript, 118.
[18] Transcript, 118.
[19] Transcript, 127
Employment
The Applicant has never been in full-time permanent employment, although he had employment for some very short periods, about three months, as a labourer. He also received the Youth or Newstart allowance before he went to gaol.[20]
[20] Transcript, 153.
Criminal history in Australia
The Applicant’s Nationally Coordinated Criminal History Check dated 12 March 2019 records his criminal history in Australia.[21]
[21] Exhibit R1, G4, 30
The following table lists the offences for which the Applicant was charged and/or convicted during the period January 2015 to December 2016:
The Applicant was questioned about the offences for which he was convicted on 3 March 2015. He agreed he entered a house and kicked open a door.[22] He also agreed that a month later he stole a bottle of spirits from a bottle shop and on 5 April 2015 he was involved in a violent altercation between a group of men and someone who owned a car. He told the Tribunal that at this time he ‘was just hanging around with the wrong people.’[23] They were friends he met through family members when he went to Queensland.[24]
[22] Exhibit R2, TB5 132; Transcript, 120
[23] Transcript, 120.
[24] Transcript, 120-121.
The Applicant was further questioned about the incidents in which he was involved when he returned to New South Wales from Queensland. The first incident occurred on 22 January 2016 at a shopping centre. He agreed he approached two males aged 15 years who were on their bicycles and took their watches off them after ‘placing them in fear’.[25] He denied that he threatened the two males when he saw them again in August 2016.[26]
[25] Transcript, 121-122; Exhibit R2, TB2 22- 24
[26] Transcript, 126-127.
The Applicant was convicted of the following offences in 2017:

On 16 March 2017 the Applicant committed three offences of larceny, five offences of attempted larceny and one offence of possessing implements to enter or drive a conveyance. At the hearing, he agreed that he did break into or attempted to break into cars and stole items from the vehicles.[27] He was convicted and sentenced to imprisonment for each of those offences on 19 September 2017.[28] For each of these offences he received a fixed term of imprisonment of one month that commenced on either 26 December 2017, or on 26 January 2018, which were to be served concurrently.
[27] Transcript, 122.
[28] Exhibit R2, TB6 177
2019 conviction
On 26 May 2017 the Applicant committed the offence of Robbery in company. He was arrested and placed into custody later that night and remained in custody from then until about 30 January 2019 when he was gaoled. On 18 January 2019, he was sentenced to four years’ imprisonment with a non-parole period of two years and three months. The sentence commenced on 26 October 2017 so that it would expire on 25 October 2021 and the Applicant would be eligible for parole on 25 January 2020.[29]
[29] Exhibit R2; TB6 229

The offence was committed in the evening when the Applicant, who was with at least three other males, approached a 60-year-old man, Mr S, in a park in [redacted].[30] The Applicant, without warning, hit Mr S on the head and knocked him to the ground. Whilst on the ground, the victim’s wallet was stolen containing $300 and some identification papers was stolen. The Applicant ‘continued to assault him’, which included punching and kicking him.[31] Mr S suffered injures involving extensive bruising and swelling to the side of his face. He was taken to hospital by ambulance.[32] The Applicant had been drinking cask wine with the other men in the park, although he suggested at one time that he had in fact been drinking ‘Jack Daniels’. The Applicant was also affected by cannabis. At the time that the offence was committed the Applicant was on bail for the offences that he committed in January 2016 and March 2017.
[30] Exhibit R1, G5, 33.
[31] Exhibit R1, G5, 34-35
[32] Exhibit R1, G5, 36
The Applicant’s sentencing proceeded on the basis that Judge O’Brien was satisfied beyond reasonable doubt that it was the Applicant who struck Mr S initially causing him to fall to the ground and that the Applicant had continued to assault Mr S, by kicking and punching him after he had fallen to the ground and after his wallet had been stolen. The Applicant denied these things in his evidence at the trial before Judge O‘Brien.
The Court heard that there was some suggestion the Applicant had been diagnosed as suffering Asperger’s syndrome and of having suffered a traumatic brain injury as a young child. Judge O’Brien found there was no medical evidence to support these assertions, although he accepted the evidence supported a conclusion that the Applicant has some deficits in respect of his intellectual functioning.[33]
[33] Exhibit R1, G5, 39
Judge O’Brien accepted the Applicant’s remorse, stating that he described himself as embarrassed and ashamed of his conduct and said that no person deserves to be robbed in the way that Mr S was robbed. The Judge found this evidence to be heartfelt and accepted that the Applicant had a degree of remorse.[34]
[34] Exhibit R1, G5, 40-41
The Applicant told the first Tribunal that he does not recall touching Mr S.[35] At the hearing, he told the Tribunal that the other person he was with grabbed Mr S and put him to the ground and he tried to stop it from happening. He said he did not hurt Mr S nor did he take anything from him.[36] When he heard people in the background he started running.[37] He told the Tribunal that he pleaded not guilty to the offences but he was found guilty by the jury and he has to accept it.[38]
[35] Exhibit R2; TB, 259
[36] Transcript, 125.
[37] Transcript, 124.
[38] Transcript, 125.
Courses and programs in gaol
After he was sentenced, the Applicant was moved to Oberon Correctional Centre where he successfully participated in the Young Adult Offender Program. He was then moved to the Outer Metropolitan Multi-Purpose Centre where he participated in the Intensive Drug and Alcohol Treatment Program. The Applicant told the Tribunal he commenced this Program in August 2019 and it helped him a lot.[39]
[39] Transcript, 128.
The Applicant participated in several other courses and programmes whilst he was in custody, including a course to obtain a forklift licence and a first aid course. He also completed the EQUIPS Foundations, Aggression and Addiction courses.[40]
[40] Exhibit R1, G3, 20
Behaviour in gaol
The Applicant’s case notes in relation to his period in gaol record that his behaviour was generally positive, although there is reference to him being aggressive at times when he did not get his own way. He had only one minor misconduct matter recorded against him for failing to adhere to the Centre routine and he was cautioned and reprimanded. At the hearing, the Applicant agreed that he did speak aggressively towards staff at the Correctional Centre on more than one occasion.[41]
[41] Transcript, 126.
Drug tests
While in custody the Applicant was subject to urine tests for the purpose of detecting whether he had used illicit drugs. Records indicate that although no drugs were detected in his system on 23 August 2018 and 30 March 2018, he was tested 26 times between 5 August 2019 and 11 November 2019 and on 19 occasions returned positive tests for methamphetamine, amphetamine, buprenorphine, morphine and cannabis.[42] The Applicant stated, in his pre-release report, that he was unable to refrain from taking drugs whilst in custody because they were so freely available in the correctional centre.[43] At the hearing he said that after he commenced the Intensive Drug and Alcohol Treatment Program in August 2019 he was ‘up and down’, however he started providing negative results in the period before he was released from gaol on 25 January 2020.[44] Since he has been in immigration detention, he has not touched any drugs.[45]
[42] Exhibit R2; TB6 160
[43] Ibid
[44] Transcript, 129-130.
[45] Transcript, 130.
Incidents in immigration detention
The Applicant agreed that he took another detainee’s phone and threw it causing the screen to crack.[46] He was asked about an incident that was recorded on CCTV footage in July 2020. He was seen to take possession of some contraband which was tested and returned traces of THC (cannabis).[47] The Applicant denied that he was actively seeking to obtain illicit substances in detention.[48]
[46] Transcript, 126; Exhibit R2, TB7, 233
[47] Transcript, 130-131.
[48] Transcript, 131.
Assessments of risk of reoffending
The Applicant has been assessed by New South Wales Community Corrections (NSWCC) on several occasions. These assessments have increased in severity, from a medium risk of reoffending on 14 March 2017[49] and 19 September 2017,[50] to a medium to high risk of reoffending on 26 September 2018[51] and 11 November 2019.[52] In his sentencing remarks in January 2019, Judge O’Brien remarked that the Applicant ‘had been assessed as a medium to high risk of reoffending and I can see no basis upon which I would not accept this assessment’.[53] The Applicant was not recommended for parole in November 2019 because it was considered that the community would be at risk.[54]
[49] Exhibit R2 TB6, 148.
[50] Exhibit R2 TB3, 52.
[51] Exhibit R2 TB6, 154.
[52] Exhibit R2 TB6,161.
[53] Exhibit R1, G5, 41.
[54] Exhibit R2 TB6, 163.
Family in Australia
The Applicant has two parents, two step-parents, four grandparents, 11 brothers and sisters, 58 nieces and nephews and 79 cousins all of whom live in Australia.[55] His mother is in custody in Queensland and is waiting to be tried for murder. She has been in custody since February 2016.[56] Her visa to remain in Australia has also been cancelled.[57]
[55] Exhibit R1, G9, 57.
[56] Transcript, 141, 142-143.
[57] Transcript, 143.
The Applicant told the Tribunal that he speaks to his father and his siblings in Sydney and Brisbane every day, and they want nothing but the best for him because they know how hard it was for him when he was growing up and how it impacted him.[58] His step-brother and step-sister provided him with a letter of support, but he did not ask his family members to give oral evidence at the hearing.[59]
[58] Transcript, 133.
[59] Transcript, 134-135.
Three of the Applicant’s siblings, E, A and T are aged between eight and 12 years of age. They live in Brisbane and are cared for by their older brother, LK who is 20 years of age and their older sister, BR who is 19 years of age.[60] The Applicant claims that he has a very strong relationship with his younger siblings and wants to return to the community to support them “financially, emotionally, spiritually and anyway possible”.[61]
[60] Transcript, 133-134, 136-137, 139.
[61] Applicant’s statement in reply, pp5,11.
The Applicant told the Tribunal that his five siblings were previously living with their maternal grandmother.[62] However their grandmother had a falling out with their mother in 2017, following which all five children were ‘kicked out’ of their grandmother’s house,[63] and they now do not have any contact with her as she does not want anything to do with them.[64] His siblings are currently living in a rental property south of Brisbane.[65] His sister, BR, has a baby, and her partner also lives at the house.[66]
[62] Transcript, 137-138.
[63] Transcript, 138.
[64] Transcript, 144.
[65] Transcript, 139.
[66] Transcript, 144.
The Applicant told the Tribunal that he has not seen his siblings since 2015 when he was living in Queensland.[67] He said he speaks to E, A and T ‘every single day’ and they communicate by way of Facebook, phone call, text and video call.[68] The Applicant was asked why he could not continue to communicate with his siblings in this way if he is returned to New Zealand. He said he wants to be there with his family ‘all day, every day.’[69] He told the Tribunal that he is ‘like their father’ to his young siblings, because ‘they don’t have a father’ and they listen to him. They do not have a mother who can talk to them as she is in custody. He told the Tribunal he is worried about his family and he wants to be there to provide for them:
I want to go back to Queensland and I want to be with my family because like that's what I want and that's what I need. I need to be with my family. And you know, I'm just worried about my family. You know, every single day I'm worried about them, what's going to happen, you know, because obviously there's no family members in Queensland that are supporting them. Like they're basically just on their own, especially being at this - like at the age that they are, like at this age, you know, they're still young, like, they - like, they don't know what they're doing. And like, I think for me, you know, it's time for me to step up to the plate and be able to provide for my family, be able to take care of them, be able to be a role model for - you know, especially for my younger siblings, you know? They're only nine, ten, you know, like they shouldn't be going through this, at all. It's not good.
… Especially like - like when they don't have no family members, especially being kicked out of my grandmother's house and you know, it's hard for them. And it's hard for me knowing that what they're going through, you know, it breaks me down knowing that they're on their own, there's no one there. And like they're still young, you know, and like I want to be able to be there for them. I want to be there for my family, you know. I want to be (indistinct) to like turn things around. I want to be there for my family. I just want to be given a second chance, you know, like - like to prove to myself …[70]
[67] Transcript, 139.
[68] Transcript, 138.
[69] Transcript, 139.
[70] Transcript, 142.
The Applicant’s other four minor siblings, T, M, A and J are aged between 12 and 17 years. They live in Sydney with their father and stepmother.[71] The Applicant told the Tribunal that he communicates with these siblings by Facebook, phone call and text message. He last saw them in person just over a year ago. They visited him once while he was detention prior to the outbreak of the COVID-19 pandemic and before he was taken to Perth and then Christmas Island.[72] They were unable to visit him when he was in gaol because he was never in Sydney. The 10 gaols in which he was held, including Bathurst, Junee, Macquarie and Cessnock, were all hours away from where his family live.[73]
[71] Transcript, 137.
[72] Transcript, 140.
[73] Transcript, 140.
There is no information before the Tribunal as to the ages of any of the Applicant’s nieces or nephews, or any other minor acquaintances.
Family in New Zealand
The Applicant told the Tribunal that his mother’s former partner, his step-father, now lives in New Zealand.[74] He is not in contact with his step-father and has not seen him for more than a decade.[75] Nor is he in contact with any of his relatives on his father’s side in New Zealand and all his relatives on his mother’s side are living in Australia.[76]
[74] Transcript, 152.
[75] Transcript, 160.
[76] Transcript, 158, 159.
Relationship with girlfriend
The Applicant told the Tribunal he has been in a relationship with TH for over a year.[77] They met at primary school and were friends when they were growing up. When he got out of gaol and was moved into detention, they began talking and started a relationship.[78] They are in contact ‘every day, all the day.’[79] She works full-time in childcare,[80] and has a son, Z, who is two years of age, whom the Applicant has not met.[81] They live in Sydney and do not have any contact with Z’s father.[82] She has never been involved in drugs or crime and has no criminal record.[83]
[77] Transcript, 145, 154.
[78] Transcript, 145-146.
[79] Transcript, 146.
[80] Transcript, 157.
[81] Transcript, 144, 145.
[82] Transcript, 145.
[83] Transcript, 145.
The Applicant told the Tribunal that he and TH have talked about the three of them relocating to Brisbane, where she also has family on her mother’s side.[84] They have agreed it would be best for them to move there.[85] They also have discussed her moving with him to New Zealand if he is returned there. It would be hard for her and her son and they have not come to a final agreement about this as yet.[86]
[84] Exhibit A2; Transcript, 155.
[85] Exhibit A5
[86] Transcript, 160.
Future plans
The Applicant told the Tribunal that his parole ends in October 2021.[87] If he is released from detention he can live with his father, his brother or his girlfriend. His parole terms however require him to live with his father and report once a week.[88] At the end of his parole he plans to move to Queensland and live with his siblings.[89] He remains on good terms with his grandmother and could also stay with her.[90] He told the Tribunal that he has the support of his family and this will help him to stay away from drugs.[91]
[87] Transcript, 160.
[88] Transcript, 131.
[89] Transcript, 130-131, 152, 160.
[90] Transcript, 152-153.
[91] Transcript, 132.
If the Applicant is released into the community, he will look for work in the construction industry in Sydney before he relocates to Queensland at the end of his parole period. He has a forklift license and a white card and has completed workplace health and safety courses through TAFE.[92]
[92] Transcript, 161.
Remorse and responsibility for offending
In his Statement of Facts, Issues and Contentions dated 25 May 2020, the Applicant stated that he ‘expresses his remorse for the people who he has affected during his time of offending in the community’ and ‘is very sorry to the people of the Australian Community and to the businesses of the Australian community.’ He ‘acknowledges that as a result of his offending the impact on the Australian community and businesses have been affected financially and mentally due [to his] poor decision-making.’ During his time in gaol and in detention he ‘has spent a lot of time thinking about his unlawful actions and disregard that he has shown for the law.’[93]
[93] Applicant’s Statement of Facts, Issues and Contentions, p 4.
Risk of reoffending
In his Statement of Facts, Issues and Contentions dated 25 May 2020 the Applicant stated that he takes ‘full responsibility for his offending’ and he ‘is confident with continuing participating in the programs and courses provided in the detention centre … that his risk of reoffending is non-existent.’ His ‘compliant behaviour in prison and detention’ and his completion of courses and programs indicates that he will behave if released back into the community.[94] He further stated that ‘there is not a real risk of him further engaging in criminal conduct in Australia, particularly when there is sufficient evidence of rehabilitation and compliant behaviour whilst incarcerated.’[95]
[94] Applicant’s Statement of Facts, Issues and Contentions, p 5.
[95] Applicant’s Statement of Facts, Issues and Contentions, p 8
Impediments on return
In his Statement of Facts, Issues and Contentions dated 25 May 2020 the Applicant expressed ‘a great concern with becoming a risk to being harmed on the street due to the likeliness of becoming homeless … as a result of enduring financial hardship, no family network, no support network, no long-term accommodation and employment [or] government assistance ...’[96]
[96] Applicant’s Statement of Facts, Issues and Contentions, p 7.
The Applicant told the Tribunal that he would be able to find work in the construction industry if he returned to New Zealand.[97] But his main focus would be trying to get on his feet and to find housing. He will be on his own as he knows no one there and has nowhere to go. He would be having to ‘start from scratch’ in a country he does not know. He will try his best, but it will be difficult for him.[98]
[97] Transcript, 153.
[98] Transcript, 153.
Statements of support
Applicant’s partner, TH
TH provided two emails in support of the Applicant dated 18 July 2020 and 26 November 2020.[99] In her email dated 26 November 2020, TH wrote that during their nine-month relationship she and the Applicant ‘have grown a strong bond and speak of being a family together.’ They ‘both want nothing more than a fresh start and new beginnings for each other.’ He often speaks of his family and their struggles and how he wants to move to Queensland with her and her son and to help provide for his family. They are in contact on a daily basis, and they agree that Queensland is the best place for them. She believes the Applicant ‘will reach his potential’ and she aims to ‘help him reach and manifest those goals if he is given the opportunity to start again.’[100]
Applicant’s sister, BR
[99] Exhibit A1; A2.
[100] Exhibit A2
In her email statement dated 13 October 2020,[101] BR wrote that she is the legal guardian of her three younger siblings, and she has a son who was born in May 2019. Her brother LK provides them with as much support as he can. When their mother was incarcerated, it took her family ‘into the biggest spiral of [their] entire life.’ They ‘fell into homelessness’ and the ‘juvenile courts’. She stated that ‘fear grows in [her] heart for [her] young siblings’. She ‘can try and be the best sister’, but she needs ‘a bit more family support’ and she knows the Applicant can help them.
Applicant’s brother, LK
[101] Exhibit A3
In his email statement dated 12 October 2020,[102] LK wrote that he lives in Brisbane with his younger sister and her baby and his three younger siblings. He is ‘struggling trying to be an older figure to all of them’ and ‘struggling [with] adult life’. He has been to gaol twice and is currently on parole. They ‘didn’t know the rules’ but they ‘have learnt from [their] mistakes’. All they ‘want is to live together and make it right not only for [ourselves] but the younger [children]’.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[102] Exhibit A4
Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 12 March 2019 regarding his criminal convictions and sentences.
The evidence before the Tribunal is that on 2 August 2018 the Applicant was convicted in the District Court of Robbery in company, and on 18 January 2019 was sentenced to four years’ imprisonment. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
primary considerations
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:
When considering protection of the Australian community, decisionmakers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen's conduct to date; and
(b)b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 (1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h) …
(i)…
In accordance with paragraph 13.1.1(1)(a), (b) and (c) of the Direction, the Tribunal is required to view very seriously the Applicant’s violent offences, particularly those committed against vulnerable people. The first violent offence occurred in January 2016 and involved the Applicant putting two teenage boys in fear of an assault if they did not hand over their wrist watches. The second offence of Robbery in company involved actual physical violence with the Applicant striking his victim to the head causing him to fall to the ground and, once he was on the ground, repeatedly punching and kicking him. The victim’s injuries were serious, including extensive swelling and bruising to his face, and required him to be transported to hospital for medical treatment. The seriousness of these offences is aggravated by the fact that the first was committed with one other person and the second with at least three others.
Having regard to paragraph 13.1.1(d) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The sentence of four years’ imprisonment imposed by the District Court on the Applicant for the second of these violent offences, reflects the fact it was considered serious. The first offence was treated less seriously, but seriously enough for a sentence of 13 months’ imprisonment to be imposed by the Court.[103] The sentences and orders imposed upon the Applicant individually and cumulatively reinforce the seriousness of his offending, as does the fact that the Applicant’s second violent offence was committed while he was on bail for the earlier offence of Robbery in company.
[103] Exhibit R1, G4, 31
The account given by the Applicant at the hearing in relation to his most recent violent offence was inconsistent with the facts upon which Judge O’Brien sentenced him to four years’ imprisonment after he was found guilty by a jury. The Tribunal is unable to contradict or go behind the Court’s findings of criminal guilt in relation to the offences for which the Applicant has been convicted. In HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202, the Full Federal Court recognised the policy reasons that require the Tribunal to accept the findings of criminal guilt made by the Court. McKerracher J stated at [76]-[77]:
… consistently with the line of authority which stems from mid-twentieth century decisions dealing with this topic, there could be no sound or legitimate policy reason to assume that the legislature intended to depart from some decades of authority which precluded facts being relied upon which necessarily contradicted the underlying facts supporting the sentence. No such legislative intent is expressed. None can be inferred. None should be found or assumed, in the absence of a clear statement to such effect.
As a matter of policy, it would be highly undesirable if [the] Minister or the Tribunal exercising a decision-making power that is founded on an earlier decision of a criminal court could, in effect, challenge the propriety or correctness of that decision, or reopen findings on which the decision was necessarily based … The adjudgment of guilt, and the determination of the punishment to be imposed as a consequence (including a sentence of imprisonment), fall within the central concept of judicial power. It is inconsistent with this principle at the heart of the separation of powers to suggest that an administrative decision-maker could come to a factual conclusion contrary to that of a court when making an adjudgment and punishment of criminal guilt which is, in turn, the precondition to that administrative decision-maker’s power.[104]
[104] See also Colvin J at [179]-[182].
The sentence imposed on the Applicant’s in January 2019 enlivened the mandatory visa cancellation power and is the reason why the Applicant fails the character test for the purposes of sub-paragraph 501CA(4)(b)(ii). Just as the Tribunal must accept the fact of the conviction, it cannot make factual findings contrary to those made by the Court for the purpose of imposing a sentence for the Applicant’s offending. They are ‘essential facts’ on which the conviction was based and cannot be questioned, although the factual circumstances of the conviction may be examined for the purposes of considering the matters relevant to the revocation of the visa cancellation. As Bromberg J explained in HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]:
Where a previous conviction is the foundation for the exercise of power by the decision- maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself…
The other offences the Applicant has committed were less serious and did not involve violence. His early offending involved stealing or offences associated with steps preparatory to or after stealing. The offences the Applicant committed on 16 March 2017 were more serious because they involved the commission of numerous offences of larceny and attempted larceny on the same day. They attracted terms of imprisonment although the terms imposed were only one month. The Tribunal has had regard to the cumulative effect of the Applicant’s repeat offending as required by paragraph 13.1.1(1)(f) of the Direction. The Applicant’s range of offences relating to larceny, drug possession, unlawful dealing with goods and use of vehicles, and entering non-prescribed premises adds further gravity to his frequent offending and, when viewed cumulatively with his other violent crimes, reinforces the overall seriousness of his conduct.
Having regard to paragraph 13.1.1(1)(e) of the Direction, the evidence before the Tribunal is that Applicant has offended frequently with a trend of increasing seriousness. The Applicant’s offending commenced with unauthorised dealing with shop goods and shoplifting and escalated significantly to robberies involving violence and intimidation, and culminated in the violent assault in May 2017 for which he was sentenced to four years’ imprisonment in January 2019.
On the basis of the evidence before it, the Tribunal finds that the Applicant’s criminal offending is serious in nature and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 13.1.2(1)(a) of the Direction, the Tribunal finds that any future reoffending by the Applicant may involve physical and/or psychological harm, including serious injury, to members of the Australian community. The Applicant’s criminal offending and other serious conduct has included actual and threatened physical violence committed against his victims. The potential harm to individuals and the Australian community should the Applicant again engage in such conduct is serious. His violent and irresponsible behaviour has caused, and has the potential to cause in the future, substantial harm to future victims, being both the psychological and physical impacts of his offending. In addition, there is the financial harm to individuals associated with larceny and robbery offences, and the significant financial cost to the community associated with emergency services and law enforcement activities in relation to any future offending by the Applicant.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct based upon the available information and evidence in accordance with paragraph 13.1.2(1)(b) of the Direction, the Tribunal notes that the Applicant has expressed remorse for the offences he committed including his most recent offence of Robbery in company. The Applicant claims to have taken ‘full responsibility’ for his offending and is confident that the risk of him reoffending is ‘non-existent’. However, as noted above, the Applicant did not accept either at the time he was sentenced, or in his evidence before both Tribunals, that he had struck the victim causing him to fall to the ground or that he subsequently punched and kicked the victim. His account of events is contrary to express findings that were made by Judge O’Brien when the Applicant was sentenced. Judge O’Brien’s sentencing remarks reflect that, by the time he came to be sentenced, the Applicant acknowledged his involvement in the offence, but in the context of an evidentiary contest about the extent of his involvement which was resolved against him. The Applicant maintained that his involvement in the offence was that he did not go to the victim’s aid and he ‘watched it happen’. As noted by the first Tribunal, the difference between the Applicant’s account and the facts as found by Judge O’Brien might lay in His Honour’s observation that ‘[g]iven the quantity of alcohol and cannabis that [the Applicant] had consumed on the evening it is far from surprising that his recollection of the actual events does not accurately coincide with that of other witnesses.’[105] The Tribunal finds that the Applicant’s different account of events to those that were the basis for the four year sentence, does not undermine his expressions of remorse in relation to this offending. This finding is consistent with Judge O’Brien’s observation that he found the Applicant’s ‘evidence to be heartfelt’ and accepted that he had ‘a degree of remorse’.
[105] Exhibit R1, G5, 40
The Applicant’s history of offending is related to his use of cannabis and consumption of alcohol. His larceny and robbery offences are likely to be related to him needing to access sufficient funds to support his habit. In his evidence to both Tribunals, the Applicant acknowledged that at the time of his offending he was abusing drugs and alcohol. He admitted that he continued to take drugs whilst in custody, including methamphetamine, but claimed that he ceased drug-taking by late 2019. The evidence before the Tribunal is that the Applicant was returning positive urine tests for illicit drugs at least until 11 November 2019. The Applicant completed several courses while he was in custody, including the Intensive Drug and Alcohol Treatment Program which was designed to assist him in dealing with his drug addiction. The Applicant’s evidence is that this Program greatly assisted him to control his drug habit and that he has not consumed any drugs or alcohol since he entered immigration detention in January 2020. Therefore, according to the Applicant’s evidence, which the Tribunal accepts, he has been drug and alcohol free for a period of 16 months. If the Applicant is released into the community where cannabis and alcohol are readily available there is a risk that he will recommence taking these drugs and this could lead to him reoffend. However, as referred to below, there are several protective factors, particularly his strong relationship with his girlfriend, which may prevent him from resuming abuse of drugs and alcohol.
The most recent assessment of the Applicant’s likelihood of reoffending is contained in the pre-release report of 11 November 2019.[106] This report assessed him as ‘a Medium High risk of reoffending according to the Level of Service Inventory – Revised’ and recommended against his release on parole. This finding was consistent with that made in the pre-sentence report that was prepared before the Applicant was sentenced on 18 January 2019.[107] These assessments indicate that throughout 2019 it was considered that there was a real prospect that the Applicant would reoffend if released into the community.
[106] Exhibit R2; TB6 161
[107] Exhibit R2; TB6 154
The Tribunal accepts the Applicant’s evidence that it is his intention not to make what he described as ‘dumb’ decisions, or to associate with the wrong people, or continue to abuse drugs and alcohol. The Applicant’s intentions to re-establish himself in the community and gain regular employment so he can provide support to his younger siblings in Queensland is a strong motivating factor against him resuming drugs and alcohol and engaging in criminal behaviour. An additional protective factor is his strong relationship with his girlfriend, TH, who does not have a history of criminal offending or drug abuse. The support TH will provide to the Applicant and his desire to maintain an ongoing relationship with her and her son are factors that will lessen the likelihood that the Applicant will reoffend if released.
The Applicant’s behaviour in custody and immigration detention indicates that he was largely compliant with rules and has not engaged in any violent or intimidatory conduct towards staff or other inmates. This indicates that the Applicant’s previous tendency towards violence has diminished since his incarceration and that the likelihood he will engage in criminal behaviour if released is reduced.
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant reoffending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the low to middle end of the scale.
For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs on balance against the revocation of the Mandatory Visa Cancellation Decision. While the Tribunal finds that the risk of the Applicant reoffending is low to moderate, the potential harm to individuals should he engage in the same or similar criminal conduct is serious.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
In considering the best interests of the child, paragraph 13.2(4) provides:
In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The relevant minor children are the Applicant’s brothers and sisters who have not yet turned 18 years of age. Three of the Applicant’s minor siblings, E, A and T, live in Brisbane and are cared for by their older brother LK and their older sister BR. The remaining four of the Applicant’s minor siblings, T, M, A, and J, live in Sydney with their father and the Applicant’s stepmother.

Having regard to the factors in paragraph 14.2(1)(b), the Tribunal has considered the strength, nature and duration of any familial and social links with people in Australia who are entitled to remain in Australia as citizens or permanent residents, and the effect of non-revocation on immediate family members who are citizens, permanent residents or people who have a right to be in Australia indefinitely. The evidence before the Tribunal is that the Applicant has very close family and social links with Australian citizens or permanent residents. The Applicant has been in a relationship with his Australian citizen girlfriend, TH, for over a year. They gave evidence of their commitment to each other and their plans to relocate to Brisbane and start a life together. If the Applicant were removed to New Zealand this would impact on TH who is uncertain whether it would be best for her and her son to join the Applicant or remain in Australia.
The Applicant gave evidence of having two parents, a step-mother, a grandmother, nine siblings, 58 nieces and nephews and 79 cousins in Australia. His family members, particularly his five siblings who reside in Brisbane, would suffer considerable hardship if he were removed. There is limited evidence of the effect his removal would have on his other siblings, his parents, grandmother, nieces, nephews and cousins. The Tribunal is satisfied that the impact on the Applicant’s family members, particularly his five siblings in Brisbane, is significant and the Tribunal finds that this consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant was not employed prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is limited evidence before the Tribunal on the impact on the Applicant’s victims or their family members of the non-revocation of the Mandatory Visa Cancellation Decision. The Tribunal has given this consideration neutral weight in determining whether the Mandatory Visa Cancellation Decision should be revoked.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Having regard to paragraph 14.5(1)(a) of the Direction, the evidence before the Tribunal is that the Applicant is 23 years old and he does not claim to have any diagnosed medical or psychological conditions or to be receiving any medical treatment. There is unlikely to be any substantial change to the social, medical and economic support available to the Applicant in New Zealand compared to Australia, and the Applicant would have access to those services and supports otherwise available to citizens of New Zealand.
Guided by paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return as, although he has not lived in New Zealand for most of his life, it has many cultural and social similarities to Australia. It will, however, take time for him to readjust to life in a country that he left as a toddler. The Applicant’s evidence is that whereas he has some family members in New Zealand he has no contact or relationship with these relatives. He will not therefore have family to support him emotionally or financially if he were removed to New Zealand.
If the Applicant's girlfriend and her son decide to relocate to New Zealand, this will greatly assist the Applicant to overcome any impediments faced by him if removed from Australia. However, the evidence before the Tribunal is that the TH is uncertain whether it would be best for them to relocate to New Zealand or remain in Australia where she has secure full-time work and social support. Accordingly, the evidence supports a finding that the Applicant is most likely to be without any familial or social support if he is returned to New Zealand.
Having regard to paragraph 14.5(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. The economic and employment opportunities in New Zealand are similar to those in Australia. The Applicant does not have a history of regular paid employment, but he does not have relevant qualifications that should allow him to secure work in the construction industry in New Zealand.
Having regard to the evidence before it, the Tribunal finds the Applicant will face considerable hardship if he is required to establish himself in New Zealand, having not lived there since he was a young child. He has no friends or family in New Zealand and will struggle to find a home and re-establish his life. This hardship will be exacerbated by his separation from his girlfriend and siblings.
Having had regard to the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs strongly in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences, particularly his violent offences against two teenagers and an elderly man, and although the Tribunal is satisfied that there is a low to moderate risk of him committing future criminal offences, the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision. It is in the best interests of the Applicant’s seven minor-aged siblings for him to remain in Australia.
Primary Consideration C weighs marginally in favour of revocation of the Mandatory Visa Cancellation Decision as although the expectations of the Australian community are that the Applicant’s serious offences should cause him to forfeit the privilege of remaining in Australia, the age at which he arrived in Australia, the duration of his residence in Australia, and the interests of his Australian citizen girlfriend and nine siblings are such that the community would have greater tolerance for the Applicant’s offending and would accept that in the circumstances his visa should be reinstated.
In regard to the relevant Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision, as do the impediments he will face on return to New Zealand.
The Tribunal is satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and that the decision to refuse to revoke the Mandatory Visa Cancellation Decision be set aside.
DECISION
The Reviewable Decision dated 16 April 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is set aside; and in substitution, the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501(3A) of the Migration Act 1958 (Cth) is revoked under s 501CA(4) of that Act.

I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[sgd].............................................
Associate
Dated: 14 April 2021

Date(s) of hearing: 11 & 12 March 2021

Applicant: Self-represented

Solicitors for the Respondent: Cormac Burke (Sparke Helmore)

[2021] AATA 875

14 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date(s) of hearing:	11 & 12 March 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Cormac Burke (Sparke Helmore)