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

Quirke and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 142 (11 February 2020)
Division:GENERAL DIVISION
File Number(s): 2019/1185
Re:William John Quirke
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:11 February 2020
Place:Sydney

The Reviewable Decision dated 7 February 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
.......................[sgd].............................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – Mandatory cancellation of Class UC subclass 457 Temporary Work (Skilled) visa – substantial criminal record – character test – whether there is any other reason why the visa cancellation decision should be revoked – Ministerial Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – drink driving –alcohol fuelled offences – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501 and 501CA.
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
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
11 February 2020
INTRODUCTION

Mr William John Quirke (‘the Applicant’), a citizen of Ireland, was born in 1985. He first arrived in Australia on 9 November 2012 on a working holiday visa.[1] On 24 November 2014, the Applicant was granted a Class UC subclass 457 Temporary Work (Skilled) visa valid for four years.[2] The Applicant left Australia for short periods in May 2015, December 2015 and July 2017 but was otherwise in Australia for approximately six years.[3]
[1] G documents, G61, 370.
[2] Supplementary documents, G71, 68-73.
[3] G documents, G61, 370.
On 10 August 2018, the Applicant was convicted in the Local Court of New South Wales of “Drive with high range PCA – 1^st offence]”, and sentenced to 16 months’ imprisonment.[4]
[4] G documents, G3, 29.
On 5 October 2018, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[5] The delegate was satisfied the Applicant did not meet the character test because of the operation of s 501(6)(a) of the Act as he has a substantial criminal record (s 501(7)(c)), and he was then serving a sentence of full-time imprisonment at South Coast Correctional Centre in New South Wales.
[5] G documents, G62, 371-376.
On 26 October 2018, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision following an invitation for him to do so as required under s 501CA(4) of the Act.
On 7 February 2019, a delegate of the Minister (‘the Respondent’) decided not to revoke the Mandatory Visa Cancellation Decision under s 501CA(4) of the Act (‘the Reviewable Decision’).[6]
[6] G documents, G2, 8-27.
On 5 March 2019, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.
On 21 December 2018, the Applicant left Australia after requesting removal on 16 November 2018 while he was in immigration detention following the cancellation of his visa.[7] As a result various provisions under s 500 of the Act, which relate to the conduct of a review in the Tribunal, specifically s 500(6A) - (6L), are not applicable to this review as the Applicant was not in the migration zone either at the time of the Reviewable Decision or the commencement of these proceedings.
[7] Supplementary documents, G70, 66-67.
The matter was heard by the Tribunal at a hearing in Sydney on 28 October 2019. The Applicant attended the hearing and gave evidence by phone and was unrepresented.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 30 August 2019;
·G documents (G1 to G65); and
·Supplementary documents (pages 1 - 73).
The Tribunal has reviewed all of 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) relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’: s 501(7)(c).
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under s 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 s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, 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 considering cancellation of a visa. 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 latter provide the framework within which the considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
1) 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 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) sets out how the discretion under s 501 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 s 501(3A).
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 and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; 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 … cancellation of the visa.” Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in s 501CA(4) 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 s 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[8] the Full Court of the Federal Court of Australia made the following observations in relation to s 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 ...[9]
[8] [2018] FCAFC 151.
[9] 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 whether:
(a)the Applicant passes the character test; and
(b)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 must be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Criminal History
A Nationally Coordinated Criminal History Check dated 24 September 2018[10] issued in respect of the Applicant, discloses six occasions (not including appeals) where the Applicant has appeared before a court in relation to 11 separate offences. In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.
[10]G documents, G3, 28-29.
2013 offences
In August 2013, approximately nine months after his arrival in Australia, the Applicant was spoken to by police on the street in the early afternoon when they observed him to be highly intoxicated.[11] According to Queensland Police records, two females, aged 16 and 20, approached police and indicated that the Applicant had spoken to the younger girl in an offensive manner. A male aged 17 also complained to police that the Applicant had spoken to him indicating that he wanted a fight. The Police records indicate that when the Applicant was taken to the watch house, he became belligerent and hostile and made various threats and used offensive language towards the officers.[12] Police conducted a breath test of the Applicant and recorded a breath analysis reading of 0.321% which resulted in them releasing him into the care of another person. The Applicant was convicted on 28 August 2013 of “commit public nuisance” and “assault or obstruct police officer”. No conviction was recorded and a fine was issued.[13] The Applicant was asked about this offence at the hearing, and he said he does not remember using any offensive or aggressive language towards anyone on this occasion.[14]
[11] Supplementary documents, G69, 57.
[12] Supplementary documents, G69, 53.
[13] G documents, G3, 29.
[14] Transcript p8.
Queensland Police records indicate that on 17 November 2013, the Applicant was observed in the early hours of a Sunday morning urinating in a public place.[15] He indicated to police that he had applied to stay in Australia, and that he was the holder of a working holiday visa. He refused to provide his details to police. He was arrested and charged. On 5 December 2013, the Applicant was convicted of “Urinating in a public place” and again no conviction was recorded but he was fined.[16] The Applicant was asked about this offence at the hearing and he said that it is ‘not a thing [he is] proud of.’[17]
[15] Supplementary documents, G69, 48.
[16] G documents, G3, 29.
[17] Transcript p9.
Australian Federal Police records indicate that the Applicant's Queensland driver’s licence was suspended and he was disqualified from driving on 14 August 2013 for driving under the influence.[18]
[18] Supplementary documents, G67, 17; G4, 31.
2014 offences
On 7 July 2014, NSW Police were called to a disturbance at a backpacker’s hostel in Sydney involving the Applicant and another male. Both were observed to be highly intoxicated and police observed that the Applicant had a slightly red chin. Both were noted to be uncooperative with police who took no further action. The Applicant was removed from the premises.[19] The Applicant was asked about this incident at the hearing and he said that ‘a lot of people turned on [him] and there was a lot of complaints made there against [him].[20]
[19] Supplementary documents, G68, 40-41.
[20] Transcript p11.
On 1 November 2014, the Applicant was observed in Canberra city by Australian Federal Police at 11:35am to be intoxicated and urinating against a wall. He was taken into protective custody and produced a breath analysis result of 0.356.[21]
[21] Supplementary documents, G67, 3-4
2015 offences
On 19 February 2015, Australian Federal Police were called to a backpacker’s hostel in Dickson.[22] The Police records indicate that a complaint was made that the Applicant had engaged in several physical altercations with other males and threatened to rape the females who were present. This was confirmed by a number of witnesses. Those present at the hostel were all in various states of intoxication. Police subsequently located the Applicant, who they observed was highly affected by alcohol. The Applicant was put under arrest for breach of the peace and taken into custody. The Applicant was asked about this incident at the hearing. He said there is ‘no truth to anything’ and that the people involved ‘all decided to turn on [him] and then they started saying crazy things that had no truth or bearing about any facts or proof.’[23] He agreed that he left the hostel as he could not stay there with ‘so many people being racist towards [him].’[24]
[22] Supplementary documents, G67, 10
[23] Transcript p12.
[24] Transcript p12.
On 22 February 2015, Australian Federal Police were called by the Applicant’s flat mate to attend the house she shared with the Applicant.[25] She was found by police locked in the bathroom with her 14 year old son and was visibly shaken and extremely upset. The Applicant was reported by her to have been drinking all afternoon and into the evening. He suddenly took hold of her arms, forced her to sit down and started yelling at her. She broke free and locked herself in the bathroom as she feared for her safety. While in the bathroom she heard him yelling and throwing items around the house. The Applicant was removed from the house and taken into custody as he had nowhere to stay.[26] The Applicant was asked about this incident at the hearing. He said that he and the lady had been drinking all day and that they were both very drunk. He does not think he put his hands on her. He is ‘not a violent person’ and he ‘definitely acted out of character’.[27]
[25] Supplementary documents G67, 12-13
[26] Supplementary documents G67, 13.
[27] Transcript p13.

On 3 April 2015, the Applicant was summonsed regarding a prescribed concentration of alcohol offence involving a reading of 0.232.[28] On 29 September 2015, the Applicant was convicted of this offence, fined $300 and disqualified from driving for five years.[29]
[28] Supplementary documents G67, 16
[29] G documents, G3, 29
On 4 April 2015, police attended the Applicant’s home to inquire about the status of his driver’s licence but were unable to locate him.[30] The Applicant was charged with being an unlicensed driver, and on 29 September 2015 a conviction was recorded and he was fined.[31]
[30] Supplementary documents G67, 17.
[31] G documents, G3, 29.
On 12 June 2015, the Applicant was intercepted by Australian Federal Police while driving and underwent a breath test which returned a reading of 0.10. He was charged with two traffic offences for driving under the influence of alcohol and driving while disqualified.[32] These charges also resulted in convictions on 29 September 2015, which included imprisonment for six months, suspended on entering recognizance of $1000 to be of good behaviour for 12 months.[33] He was placed on probation for 12 months and had his licence disqualified for five years, three years of which were concurrent.
[32] Supplementary documents G67, 23.
[33] G documents, G3, 29.
The Applicant was asked about the Australian Federal Police records that indicate that following this conviction, he was required ‘to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to alcohol abuse.’[34] He said that he went to a one day course and two evening courses about drink driving.[35]
[34] G documents, G11, 66.
[35] Transcript p14.
2017 offences
On 23 September 2017, the Applicant was pulled over by NSW Police and underwent a breath test which produced a reading of 0.189.[36] He did not have a NSW driver’s licence. Police checks revealed he had a licence suspended in Queensland and he was also under a period of disqualification in the Australian Capital Territory (ACT).[37] The Applicant was asked about this offence and he agreed that he was drink driving and driving without a licence. He denied that he would regularly drive without a licence.[38] He did not have a car and only borrowed a car and drove when he could not get an Uber.[39]
[36] Supplementary documents, G68, 40.
[37] Supplementary documents, G68, 40.
[38] Transcript p15.
[39] Transcript p15.
On 30 December 2017 at 5pm, the Applicant was observed by other drivers to be driving in an erratic and dangerous manner. [40] He ‘swerved all over the road’ and then drove on to the incorrect side of the road, forcing another vehicle to move off the road and onto the shoulder to avoid a collision. When he stopped his vehicle, he was in the driver’s seat and one of the witnesses took his keys. Police were called and the Applicant’s vehicle was found to be unregistered and uninsured.[41] Police attempted to conduct a roadside breath analysis on the Applicant but he refused to submit to a breath test.[42] He was arrested and taken to the police station where he refused a breath analysis on three occasions, claiming he had been a passenger in the vehicle.
[40] Supplementary documents, G68, 39.
[41] Supplementary documents, G68, 39.
[42] G6 and Supplementary documents, G68, 40.
The Applicant was subsequently charged and convicted on 10 August 2018 of two counts of, “Refuse or fail to submit to a breath test”, “Refuse or fail to submit to…breath analysis,” and “Drive with high range PCA”.[43] He was sentenced to terms of imprisonment of 16 months and 14 months for the latter two offences. The Applicant lodged a severity appeal which was dismissed.[44]
[43] G documents, G3, 29.
[44] G documents, G5.
In sentencing the Applicant, Magistrate Fleming noted the fact that he had been pulled over for drink driving within three months of each offence.[45] She also expressed concern about the manner in which the Applicant was driving on the date of the offence, noting that he was driving all over the road and another driver had to swerve to avoid a collision. She also noted that the Applicant had offered the witnesses, who eventually pulled him over and took his keys, $1,000 to help him get him out of the car before the police came.[46]
[45] G documents, G4, 31.
[46] G documents, G4, 31.
The Magistrate described the Applicant’s driving record as ‘absolutely appalling’ and said his offending was ‘extremely serious’.[47] She observed that the Applicant ‘has decided to put himself first and put the rest of the community at risk.’[48] The Magistrate noted that since being in custody, the Applicant had been attending rehabilitation and ‘appear[ed] to be alcohol free’.[49] While his rehabilitation was given significant weight, the Magistrate also noted that the Applicant’s record ‘shows this is not out of character for you.’[50] She indicated that there was no alternative but to impose a sentence of full-time imprisonment.
[47] G documents, G4, 31.
[48] G documents, G4, 31.
[49] G documents, G4, 31.
[50] G documents, G4, 31.
The Applicant was questioned about these offences at the hearing. He said he did not know the car was unregistered and agreed that he did not have licence at the time.[51] The only occasions when he drove without a licence were the occasions when he was picked up by police.[52] He told the Tribunal that he is not proud of his behaviour ‘in any way, shape or form.’[53] He denied that he offered anyone money as reported. He did not have this money so he could not have offered it. [54] He said he was ‘happy’ that he was pulled over as he ‘ended up going to rehab and finally getting the help that [he] needed.’[55]
[51] Transcript p15.
[52] Transcript p16.
[53] Transcript p16
[54] Transcript p16.
[55] Transcript p17.
Alcohol consumption and rehabilitation
The Applicant told the Tribunal that he has always known he has a drinking problem and is ‘an alcoholic’,[56] but it is not easy to take the steps needed to address it without the right kind of help. He said he was in ‘a state of denial’ about his problem.[57] He has been ‘trying to give up alcohol all [his] life.’[58] He has given up for periods of two or three months or even longer but then he would ‘just fall into old habits’.[59] He would have liked to have gone into rehab when he was a lot younger, and if he had done so he probably would have ‘been considered an upstanding person of any society.’[60] He was not fully aware of how sick he was until he spoke to people in rehab and found out that his problems are not rare.[61]
[56] Transcript p12.
[57] Transcript p8.
[58] Transcript p9.
[59] Transcript p9.
[60] Transcript p8.
[61] Transcript p11.
The Applicant told the Tribunal that he was released from prison on 21 March 2018 and bailed into the Calvary Riverina Drug and Alcohol Centre at Wagga Wagga. He was at this Centre for three months and left voluntarily on 15 June 2018 after completing phase one and two of the program.[62] He did not apply for phase three and therefore did not receive a certificate for completing phase two. His counsellor and case manager at Calvary provided positive reports on his progress at the Centre.[63] After this time in residential rehabilitation, the Applicant attended Alcoholics Anonymous twice a week. He has not had a drink for two years since his arrest in December 2017.[64]
[62] G documents, G15, 79.
[63] G documents, G15, 79.
[64] Transcript p12.
Remorse and responsibility for offending
The Applicant told the Tribunal that he ‘just made bad decisions’ and that ‘99 per cent of the time [he is] a very good person that tries to abide by the law’.[65] He has never committed a crime or ‘been involved in any questionable incidents’ while sober.[66]
[65] Transcript p10.
[66] Transcript p12.
Psychological treatment
The Applicant told the Tribunal he has suffered from depression since he was 13 years old. He did not ‘fully understand’ himself and has been ‘emotionally immature’.[67] Before he went to rehab he was ‘very depressed’ and ‘had self-esteem issues’.[68] The Applicant agreed that he told Dr Martin that in 2011 he saw a drug and alcohol clinician who diagnosed him with alcohol related depression. He agreed that he did not continue with this treatment.[69]
[67] Transcript p9.
[68] Transcript p14.
[69] Transcript p9.
In his report dated 19 February 2018, Dr Adam Martin, forensic psychiatrist, provided the following opinion in relation to the Applicant:
Mr Quirke has significant psychological problems which can be described as alcohol use disorder … and a probable underlying mood disorder.
Mr Quirke clearly describes depressive episodes of a sustained pattern and long term problems with feelings of low esteem, anger directed towards others and a negative world view.[70]
[70] G documents, G12, 74,
Dr Martin recommended that the Applicant be referred to a residential drug and alcohol facility and that he abstain from alcohol and other substances. He further recommended that he be referred to a psychiatrist for further assessment and management of depression, and to a psychologist for psychotherapy around depressive disorder and counselling around the losses in his life, including his brother and mother.[71]
[71] G documents, G12, 75.
In a further report dated 14 January 2019, Dr Martin, confirmed his earlier diagnosis of the Applicant as suffering from alcohol use disorder, ‘currently in remission’.[72] He noted that the Applicant ‘accepts this vulnerability and has developed a good plan around relapse prevention and is expressing his intention to engage in future drug and alcohol counselling.’ He reported that the Applicant has a ‘good prognosis … relative to other people in his situation, in that he has insight and has demonstrated a willingness to engage in previous treatment.’ In his opinion, the Applicant ‘does not have criminal versatility … and the criminal issues have revolved around alcohol use and driving rather than violence and stealing.’[73] The Applicant ‘otherwise presents as an intelligent man who has engaged successfully in skilled work and who has not engaged in other anti-social behaviour.’[74] Dr Martin however emphasised the need for the Applicant to continue alcohol counselling and psychological treatment ‘in order to minimise the chances of future relapse as there will be an ongoing vulnerability to using alcohol as a coping mechanism at times of future stress.’[75]
[72] G documents, G65, 394.
[73] G documents, G65, 395.
[74] G documents, G65, 396.
[75] G documents, G65, 395.
Return to Ireland
The Applicant told the Tribunal that for the first few months after he returned to Ireland he was helping out on the farm with his father who has terminal cancer. In February 2019, he got a job in Dublin as a carpenter which is where he has been working since.[76] He has remained abstinent and attends Alcoholics Anonymous once a week. He has had no interactions with the police since he returned to Ireland.[77] He is not currently seeing a psychiatrist or a psychologist.[78]
[76] Transcript p21.
[77] Transcript p18.
[78] Transcript p22.
Family members
The Applicant has two sisters, one of whom is a permanent resident and the other is an Australian citizen. One sister is currently in Ireland with their father, but she intends to return to Australia.[79] He also has a nephew, aged two, who is an Australian citizen. He would like to be able to visit his family here in Australia.[80]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[79] Transcript p19.
[80] Transcript p18, p20.
(a) Does the Applicant pass the character test?
The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 10 August 2018, the Applicant was convicted in the Local Court of New South Wales of “Drive with high range PCA – 1^st off”, and sentenced to 16 months’ imprisonment. The Tribunal is satisfied that the Applicant does not pass the character test prescribed in s 501(6)(a), as he has ‘a substantial criminal record’ as defined in s 501(7)(c). The Tribunal is also satisfied for the purposes of s 501(3A)(b) of the Act, 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 s 501CA(4)(b)(i) for revocation of the Mandatory Cancellation Decision.
(b) 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 Consideration A – Protection of the Australian community
Primary Consideration A of Part C is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:
1) When considering protection of the Australian community, decision-makers 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 non-citizens 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) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. 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;
…
(a) Nature and seriousness of the Applicant’s conduct to date
In considering the seriousness of the Applicant’s criminal offending, particularly the 2017 offences for which he received a 16 month sentence of imprisonment, the Tribunal has had regard to a number of factors, including those listed in paragraph 13.1.1(1).
The Applicant’s offences are primarily traffic or driving offences or other behavioural offences related to his overconsumption of alcohol. His convictions include five offences where he drove under the influence of alcohol with a high range PCA. In addition, his offences include public nuisance offences, unlicensed driving, licence expiry and assault or obstruction of a police officer. While the Applicant’s offending may be characterised as drink driving and other alcohol related offences, this does not negate the seriousness of his offending. The 2017 offences involved the Applicant driving in a highly reckless and extremely dangerous manner, which could have resulted in the loss of multiple lives, and are therefore very serious. This is reflected both in the sentencing comments of the Magistrate as well as the actual sentence imposed which involved a period of full time custody.
Having regard to the factors in paragraph 13.1.1(1)(a) and 13.1.1(1)(b), the Tribunal notes that the offences for which he was convicted do not involve violence, including against women or vulnerable persons. However, the Tribunal notes that the Applicant has had multiple encounters with police in relation to incidents involving apparent violence or threats of violence, including against women, which did not result in him being charged or convicted.
The Tribunal has had regard to the sentences imposed by the courts as provided in paragraph 13.1.1(1)(d) of the Direction and finds that while these are not substantial, they do not detract from the serious nature of the Applicant’s criminal offending. A sentence of 16 months’ imprisonment was imposed on the Applicant for the 2017 offences. This custodial sentence is an objective indicator of the seriousness of the Applicant’s 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 v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].
Having regard to paragraph 13.1.1(1)(e) and (f) of the Direction, the frequency of the Applicant’s offending during his six years residency in Australia is another factor elevating the seriousness to be attributed to his offending. During the six years the Applicant was in Australia, he was charged with 11 offences and had multiple additional interactions with police. His offending demonstrates a persistent and blatant disregard for the law for nearly the entire time he was in Australia; his first offence being committed approximately nine months following his arrival. While the Applicant admits that he was aware that he had a serious drinking problem when he arrived in Australia, he did nothing to address this or to rectify his anti-social and criminal behaviour during the time he was in Australia. Despite being aware of his alcoholism, the Applicant continued to overindulge in alcohol to the point of intoxication and attract the attention of the police on multiple occasions. Even after being charged and convicted for several alcohol related offences, the Applicant took no steps to seek assistance or treatment for his alcohol use disorder. It was not until he was placed into custody following the 2017 offences that he entered into rehab and obtained the treatment he required to address his alcohol addiction.
On the basis of the evidence before it, and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal conduct has been consistent over many years and potentially life threatening, and is therefore very serious.
The seriousness of the Applicant’s criminal offending 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 of the Direction:
(1) 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 re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).

In considering the likelihood that the Applicant will engage in further criminal or other serious conduct, the Tribunal has had regard to the Applicant’s evidence to the Tribunal, the representations he made in support of his request for revocation of the Mandatory Visa Cancellation Decision, his oral evidence at the Tribunal hearing, and the letters of support from his friends and family who believe he has successfully rehabilitated.
Guided by the factors in paragraph 13.1.2(1)(a) of the Direction, in considering the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, the Tribunal finds that this harm could involve serious physical injuries to the public and road users that may be fatal. The Applicant demonstrated during his six years’ residency in Australia, that despite having many interactions with the police and being convicted of a number of offences, including disqualification of his driver’s licence, he did not take steps to modify his behaviour, particularly his excessive alcohol consumption, which exposed other road users to potential serious harm. As Magistrate Fleming observed in her sentencing remarks, the Applicant knowingly ‘put himself first and put the rest of the community at risk’ when he drove while heavily intoxicated in December 2017.
Having regard to paragraph 13.1.2(1)(b) of the Direction, in considering the likelihood of the Applicant engaging in further criminal or serious conduct, and taking into account information and evidence on the risk of him re-offending, the Tribunal notes that the majority of the Applicant’s offending was fueled by his excessive consumption of alcohol. The Applicant’s evidence is that he is now rehabilitated after attendance at a rehabilitation program in 2018, and he has not consumed alcohol for two years.
Based on the Applicant's criminal and behavioural history, the Tribunal is not satisfied that there is not an insignificant risk that the Applicant will re-offend. Whereas the Applicant’s evidence is that he is sober and attends weekly AA meetings in Dublin, the advice of Dr Martin is that the Applicant should continue alcohol counselling and psychological treatment ‘in order to minimise the chances of future relapse as there will be an ongoing vulnerability to using alcohol as a coping mechanism at times of future stress.’[81] The Applicant’s evidence is that he is not seeing a psychiatrist or psychologist nor is he attending counselling for his alcohol addiction. The evidence before the Tribunal is that the Applicant’s father has terminal cancer and has only a limited time remaining before he passes. There is a risk that without the professional support the Applicant requires, the psychological distress he will experience following the passing of his father may cause him to relapse and re-offend.
[81] G documents, G65, 395.
While the evidence before the Tribunal is that the Applicant successfully attended a rehabilitation program in 2018 and has remained sober for two years, his ability to maintain this abstinence has not been tested in the Australian community. His history of being aware of his serious alcohol problem since an early age, his previous unsuccessful attempts to cease drinking, and his antisocial behaviour and criminal offending in Australia, are such that further similar offending cannot be discounted. Therefore, the Tribunal cannot be satisfied that the Applicant does not pose a risk to the Australian community against which it should be protected. Accordingly, this factor weighs against the revocation of the Mandatory Visa Cancellation Decision.
For the reasons above, and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, the Tribunal finds that Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
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 requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. The Applicant does not have any minor children in Australia and therefore this consideration is not relevant to the exercise of the discretion.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) states:
1) The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Principles contained in paragraph 6.3 of the Direction are relevant to this Primary Consideration. Principle 1 recognises that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. Principle 2 recognises that it is the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.
In a number of recent decisions, the Federal Court has considered the scope and application of this Primary Consideration. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (‘YNQY’), Mortimer J observed as follows in relation to the consideration detailed in this paragraph of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] …It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
In Afu v Minister for Home Affairs [2018] FCA 1311, Bromwich J said at [85]:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 ...The Tribunal was required to give effect to those norms which is precisely what it did.
Last year, the Federal Court delivered two decisions relating to the approach in determining the expectations of the Australian community: FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’) and DKXY v Minister for Home Affairs [2019] FCA 495 (‘DKXY’).
FYBR is authority in support of what has been termed the ‘narrow’ approach[82] to the determination of the expectations of the Australian community. As observed by Perry J:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases ...[83]
[82] DKXY at [22].
[83] FYBR at [42].
A broader approach to the determination of the expectations of the Australian community was adopted by Justice Griffiths in DKXY. In Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019) (‘Dalley’), Senior Member Tavoularis observed that this decision is authority for the proposition that:
(a) the Government’s views regarding the expectations of the Australian community must be given due regard; and
(b) so must all other circumstances which are relevant in a particular case.[84]
[84] at [122].
On 24 October 2019, the Full Court of the Federal Court delivered its judgment in FYBR v Minister for Home Affairs [2019] FCAFC 185, being an appeal from Perry J’s judgment in FYBR. The Full Court dismissed the appeal which was concerned with the correct construction and application of cl 11.3(1) of Direction No 65, which is in all relevant respects the same as paragraph 13.3(1) of the Direction. In three separate judgments, (Charlesworth and Stewart JJ, Flick dissenting) did not accept that the paragraph is a ‘deeming provision’ in that it must in all circumstances require the refusal or cancellation of a visa.
Charlesworth J found at [66]-[67] that the paragraph does contain a statement of the government’s views as to the expectations of the Australian community and to this extent, it is a ‘deeming’ provision in the sense explained by Mortimer J. It is not for the decision-maker to make his or her own assessment of community expectations. However, Her Honour emphasised at [73] that the paragraph does not preclude the decision-maker from forming his or her own view as to whether the non-citizen should or should not hold a visa. The decision-maker’s assessment of whether or not the person should hold a visa may differ from the expectations of the Australian community as deemed by the government. As she stated at [76], ‘[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion’.
Stewart J emphasised at [89]-[90] that whereas it is to be expected that the Government ‘may wish to set the norms by which decisions to refuse or cancel visas are made’ it is not to be expected that the Government would seek via this device ‘to dictate to the statutory decision-maker the outcome’ in any particular case. This would ‘be inimical to the process of decision-making that has been established under the Migration Act and would constitute unlawful dictation to the decision-maker.’ Having regard to the text of the Direction, His Honour found at [103] that Australian community expectations ‘speak normatively’ and are to be applied in every case, but they are not expressed in relation to any case. He emphasised at [105] that ‘[t]he specific circumstances of the … applicant are necessarily front and centre of every decision’.
Flick J at [18]-[19] did not accept the ‘unqualified conclusion’ of Mortimer J in YNQY at [76] that Australian community expectations are defined in one particular way, namely that there should be non-revocation of the mandatory visa cancellation in circumstances where a person has been convicted of serious crimes of a certain nature. He also did not accept that the Tribunal may not go beyond the ‘norm’ which the paragraph sets forth and go on to find that there may be other aspects of Australian community expectations of relevance to the facts and circumstances of a given case. His Honour at [20] preferred the approach of Griffiths J in DXKY at [31] that allows a finding that the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. His Honour found that this approach was supported by the text of the Direction at [21]-[22]. He emphasised at [23] that in construing the Direction and other statements of government policy, it is necessary to have regard to ‘the overarching imperative that no statement of government policy can confine what would otherwise be the full ambit of any discretionary power conferred by statute’.
In summary the authorities, particularly the reasoning of the members of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, affirm the proposition that the Government’s view about the expectations of the Australian community must be considered, but this does not amount to dictating the outcome of a particular case, and the decision-maker must ultimately decide how the specific circumstances of an applicant’s case interact with the Principles in Direction 79.
Having regard to the expectation of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia, and has therefore failed to the meet the expectation of the Australian community that non-citizens will obey Australian laws while in Australia. During his six years residency in Australia, the Applicant breached the Australian community’s trust by engaging in serious and frequent criminal activity which potentially could have resulted in the loss of multiple lives. In these circumstances, the expectations of the Australian community would be that the Applicant should forfeit the privilege of continuing to hold a visa to remain in Australia.
In determining the expectations of the Australian community, the Tribunal has been informed by Principle 5 which provides:
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.
It has also been informed by Principle 6 which provides:
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.
Principle 7 also relevantly provides:
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.
The Applicant arrived in Australia in November 2012 at the age of 26 years. He was consistently employed from January 2013 as a roofer and carpenter and thereby contributed to the economy and paid taxes.
Having regard to the factors in Principles 5 and 7, particularly the length of time the Applicant lived in Australia and his contribution to the Australian economy, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had not made these contributions to the economy and had been resident in Australia for a shorter period of time.
Principle 6 recognises that Australia has a low tolerance of any criminal or other serious conduct by persons holding a limited stay visa, reflecting that there should be no expectation that such persons should be allowed to remain permanently in Australia. Prior to its cancellation, the Applicant held a Class UC subclass 457 Temporary Work (Skilled) visa, and as a holder of such a temporary visa there is no expectation that he should remain in Australia on a permanent basis.
Having regard to the factors in Principles 7, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the Mandatory Visa Cancellation Decision on the Applicant’s family members in Australia. He has two sisters, one of whom is a permanent resident and the other an Australian citizen, and an Australian citizen nephew. His sister, Caroline, provided a letter of support for the Applicant, however she did not indicate that that she and her family would experience significant negative impacts should the Applicant not be able to return to Australia.[85]
[85] G documents, G32, 140.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the three Primary Considerations carry particular weight, the Direction acknowledges at paragraph 14 that Other considerations must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this consideration weighs neither in favour nor against the revocation of the Mandatory Visa Cancellation Decision.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
1)    Reflecting the principles at 6.3, decision-makers must have regard to:
a)    How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

Having regard to the factors in paragraph 14.2(1)(a), the Applicant resided in Australia for six years and was consistently employed as a carpenter and made a positive contribution to the Australian economy. The Applicant first offended less than one year after arriving in Australia, and was charged with “Assault or obstruct police officer”.[86]
[86] G documents, G3, 29.
The Applicant departed Australia in December 2018, is now living in Ireland and is employed in Dublin in his trade as a carpenter. He has two sisters and a nephew in Western Australia. It does not appear that the Applicant had regular physical contact with his family members in Western Australia when he was residing here, as he lived in Queensland, New South Wales and the Australian Capital Territory.[87] The majority of the Applicant’s family, including his other siblings and his father, live in Ireland. The Tribunal accepts that the Applicant’s sisters in Australia will suffer a degree of emotional hardship as a consequence of him being unable to return to Australia. A number of his friends provided character references for the Applicant.[88] The Tribunal accepts that a decision that the Applicant cannot return to Australia will cause his friends some disappointment.
[87] Transcript p19.
[88] G documents, G19, G26-G30, G32.
On the basis of the evidence before it, and having regard to the factors in paragraph 14.2(1), including the length of time the Applicant resided in Australia, his contributions to the economy, and the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs marginally 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 an important service in Australia.
The Applicant’s employment prior to his incarceration was working as a carpenter. 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 Ireland.
On the evidence before the Tribunal, this consideration weighs neither in favour nor against the revocation of the Mandatory Visa Cancellation Decision
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 no evidence before the Tribunal in relation to impact on the Applicant’s victims or their family members of the revocation of the cancellation of the Applicant’s visa. This consideration therefore weighs neither in favour nor against the revocation of the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1):
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 the considerations in paragraph 14.5(1)(a) of the Direction, the Tribunal notes that the Applicant is aged 34 years and has been diagnosed with alcohol use disorder and probable underlying mood disorder. These conditions are ones for which the Applicant can obtain treatment in Ireland where medical and psychological services are comparable to those in Australia.
Having regard to the factors in paragraph 14.5(1)(b) and (c), there is no evidence to indicate that there are any other relevant impediments to the Applicant’s return. The Applicant voluntarily returned to Ireland where he lived for the first 25 years of his life and where he completed his schooling and trade. He has now been in Ireland for a period of some 12 months and has re-established his ties with his father and siblings who reside there. He has secured employment as a carpenter in Dublin and has found temporary accommodation.
Having had regard to the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration does not weigh 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 the 2017 offences, and the ongoing risk of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C also weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community would be that the Applicant’s offending, whilst the holder of a temporary visa, should cause him to forfeit the privilege of remaining in Australia. The duration of his residence in Australia and his contributions to the economy are factors that would increase the Australian community’s tolerance for the Applicant’s offending, however not to the extent that its expectation would be that his visa be reinstated.
In regard to the relevant Other considerations, only the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
DECISION
The Reviewable Decision dated 7 February 2019 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

.........................[sgd]...........................................
Associate
Dated: 11 February 2020

Date(s) of hearing: 28 October 2019

Applicant: In person

Solicitors for the Respondent: Ms D Watson, Australian Government Solicitor

[2020] AATA 142

11 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Date(s) of hearing:	28 October 2019
Applicant:	In person
Solicitors for the Respondent:	Ms D Watson, Australian Government Solicitor