QYFM and Minister for Home Affairs (Migration)

QYFM and Minister for Home Affairs (Migration) [2019] AATA 717 (16 April 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0811
Re:QYFM
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:16 April 2019
Place:Melbourne

The decision under review is affirmed
..........................[SGD]..............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – NON REVOCATION OF MANDATORY CANCELLATION OF VISA ON CHARACTER GROUNDS – Class BC Subclass 100 (Partner) visa - where Applicant does not pass the character test – more than 12 months’ imprisonment or more - whether there is any other reason to revoke the mandatory cancellation of the Applicant’s visa – considerations in Direction 79 – Decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Re: Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
INTRODUCTION

This matter relates to an application for review filed by QYFM (“the Applicant”) on 15 February 2019. The decision under review is the decision of a delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) dated 1 February 2019. The delegate’s decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) was to not revoke the mandatory cancellation[1] of the Applicant’s visa.
[1] Mandatory visa cancellation by virtue of s 501(3A) of the Act.
The Tribunal has jurisdiction to review the decision of the delegate pursuant to s 500(1)(ba) of the Act.
BACKGROUND
The Applicant is a 42 year old man who was born in Burkina Faso. Movement records indicate that he first arrived in Australia in July 1997 and remained here for approximately four years, departing in September 2001. He returned in December 2011, departed on 10 February 2012, returned on 10 April 2012, departed on 11 June 2012, and returned on 27 June 2012.
The Applicant was granted a class BC Subclass 100 (Partner) visa since his arrival back in Australia in 2011. This is the visa that was mandatorily cancelled by the Minister’s delegate on 8 November 2017. The Applicant made representations seeking to revoke the cancellation decision in 22 November 2018. On 1 February 2019, a delegate of the Minister refused to revoke the mandatory cancellation of the Applicant’s visa.
The Applicant has a criminal history in Australia. It relates to a singular offence for which he was sentenced by the Melbourne County Court on 5 December 2013. The offending involved the commission of an offence by proxy/import/export of a marketable quantity of border controlled drugs, namely, cocaine. The Applicant was convicted and sentenced to a head custodial term of 10 years with a non-parole period of seven years.
On 21 November 2014, the Applicant appealed against his conviction to the Court of Appeal of the Supreme Court of Victoria. The appeal was brought on the basis that the trial judge erred in failing to exclude certain statements from the evidence adduced at trial. The Court of Appeal dismissed the appeal.
As mentioned earlier, the Minister’s delegate refused to exercise any discretion to revoke the original decision on 1 February 2019. This application comes before this tribunal by virtue of the Applicant’s lodgement of an application for review of that decision on 15 February 2019.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[2]
“…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…”[3]
[2] [2018] FCAFC 151.
[3] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a) Whether the Applicant passes the character test; and
(b) Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[4] I will address each of these grounds in turn.
[4] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, either conceded or otherwise readily accepted that he does not pass the character test because he has a substantial criminal record as defined by the Act. In my view, this concession was appropriately made. There is no getting around the length of both the head custodial term or the non-parole period that was imposed by the Melbourne County Court on 5 December 2013.
It should be noted that although the head custodial term was 10 years and the Applicant is still serving a non-parole period of seven years, the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[5]
[5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application[6]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
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.[7]
[6] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[7] The Direction, sub-paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]
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.[9]
[8] [2018] FCA 594.
[9] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)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;
(iv)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;
(v)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;
(vi)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 be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. In return, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph points out to decision-makers that mandatory cancellation without notice of certain non-citizen prisoners is consistent with the abovementioned principle that (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending history can be gleaned from his National Police Certificate which appears in the material.[10] The totality of the offending history can be summarized as follows:
The offending history in Australia
[10] Exhibit 5, s 501 G-Documents, G2, page 25.

Court

Court Date

Offence

Court Result

Melbourne County Court

5 December 2013

Commission by proxy/import/export marketable quantity of border controlled drugs

Convicted. Sentenced to 10 years’ imprisonment non-parole period 7 years.

526 days reckoned as time served

The Nature and Seriousness of the Applicant’s Conduct to Date

In his oral evidence before the Tribunal, the Applicant was clearly cognisant of the very serious nature of his offending. He made it clear that he appreciated the nature and severity of what he had done and he readily accepted that his offending involved participating in criminal activity that has had, and continues to have, very serious consequences for virtually all of the Australian community, not just the unfortunate relative few who have fallen victim to the harmful qualities of addiction of such substances.
The Respondent’s contention is that the Applicant’s conduct has been extremely serious and that the indicia of his offending gives rise to no other characterisation other than “extremely serious”.[11]
[11] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) dated 3 April 2019, page 7, paragraph [25].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(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)…
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly or the disabled) ... are serious
(d)Subject to paragraph (b) above, the sentence imposed by the Court 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)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The sentencing judge in the Melbourne County Court (Her Honour, Judge Douglas) noted that the Applicant’s criminality involved the attempted importation of 1503.3 grams of cocaine having a purity of 57.9% thus giving a pure weight of cocaine of 870.4 grams. The potential wholesale value of the drug was $330,000 or put another way, $220,000 per kilogram. Importantly, the potential street value of the pure amount of the drug, when sold at about 30% purity, amounted to $724,250.[12]
[12] Exhibit 5, s 501 G-Documents, G2, page 27.
Accordingly, there can be no argument that importation of such quantities of an illegal drug must necessarily constitute extremely serious offending. If sold to the Australian community, the drug could have caused extreme detriment and very significant harm indeed. The Applicant accepted that offending of this type affects not just the users, but also engages and absorbs the resources of hospitals, health care systems, disability support networks and agencies, ambulance services, the police, the law courts and associated entities.
There is no other finding than the potential harm that could have resulted from this type of offending could well have been extremely serious. While not readily apparent from the circumstances of his offending, there is little that can be said against the argument that such a very large quantity of unlawful substance attracts to it an appreciable and often extreme degree of violence. That violence can manifest in a number of different ways ranging from (1) an addict’s desperate attempts to do whatever it takes to feed and satisfy their habit and (2) at a more organised level, gangland turf wars about market share and customer base to whom such substances are sold.
The Applicant was perhaps understandably vague about how he was introduced into or caused to commit the subject offence. He was part of a sophisticated organisation and I do not accept his evidence to the effect that his trip to Brazil, his purported implication of his mother-in-law as an unsuspecting carrying mule and his promotion of a fictitious story to his mother-in-law about taking a holiday with him to Brazil to bring back samples of construction tiles.
The totality of the Applicant’s offending that came before Her Honour Judge Douglas in December 2013 is both calculated and extremely serious. There is nothing the Applicant can do now to ameliorate or explain his unlawful conduct. Having regard to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the clearly reckless circumstances of the totality of the Applicant’s offending for which he was sentenced in December 2013 must be viewed very seriously.

Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that crimes committed against vulnerable members of the community are to be regarded as serious. The Applicant’s offending deliberately drew a vulnerable member of the community – his mother-in-law – into its orbit. A different view could be perhaps formed if the Applicant was acting entirely on his own. But that is not how the Applicant configured and executed his offending plan. Things transpired as follows:
·In May 2012, he concocted a story to his mother-in-law to accompany him on a business trip. The purpose of the trip was to source some tiles for a restoration project at a local restaurant;
·He set the destination as Brazil;
·On 16 May 2012, he caused approximately $AUD 10,000 to be deposited into his bank account by third parties;
·On 11 June 2012, the Applicant and his mother-in-law departed Australia and arrived in Brazil on 12 June 2012;
·While in Brazil with the mother-in-law, certain further cash deposits were made into his bank account by third parties;
·On 18 June 2012, he acquired a backpack and told the mother-in-law that the tile samples would be placed in the backpack. The tile samples comprised the cocaine;
·On 21 June 2012, while travelling to the Brazilian airport with his mother-in-law, he asked her to carry the backpack through Brazilian customs. He deliberately absented himself from her while she did so, pretending to have a telephone call to make;
·He and the mother-in-law travelled from Brazil via Dubai and then back to Australia. While in Dubai, he convinced the mother-in-law to leave her main suitcase in Dubai and to use the backpack (in which he had secretly stored the drugs) to carry her other belongings;
·According to the sentencing remarks of Judge Douglas, the Applicant was insistent that the mother-in-law specifically use the backpack secretly containing the drugs (that she did not know about) for the carriage of her own personal belongings;
·On 27 June 2012, the Applicant and the mother-in-law arrived in Melbourne. Again, he deliberately put the mother-in-law in harm’s way by not disembarking with her and causing her to go through customs before him while he pretended to remain on the plane filling out his incoming passenger card; and
·They both went through customs in Melbourne. The illegal drugs were detected in the backpack carried by the mother-in-law.
The real extent to which the Applicant’s conduct sought to put the mother-in-law into harm’s way can be gleaned from their comparative responses to customs officials. When questions about the drugs by customs officials, she said
·She had packed her things into the backpack;
·She was travelling with her son-in-law on a 14 day holiday, 10 days in Brazil and four days in Dubai;
·She had never seen the backpack at any time prior to the Applicant providing it to her in Brazil;
·She had no idea that drugs were contained in the lining of the backpack; and
·The backpack had been given to her by the Applicant and that he insisted she carry it.
When the Applicant was questioned about the contents of the bag, he said:
·That he had gone to Brazil for 6 days for “sightseeing”, mentioning nothing about a trip with his mother-in-law to Brazil to collect tile samples for a restoration project of a restaurant in Australia;
·He was travelling by himself and at no time had he travelled with the mother-in-law or anybody else;
·He did not meet anybody in Brazil, not his mother-in-law nor any tile merchants;
·He conceded, when pressed, that the female carrying the backpack was his mother-in-law and that she did accompany him on the trip to Brazil and Dubai; and
·Their respective airline tickets had been paid for separately.
It is plain from the Applicant’s responses to questions put to him by customs officials that he had no compunction or hesitation in placing an innocent and totally oblivious person to what he was really doing, directly in harm’s way. The mother-in-law was a vulnerable person to the criminality behind the Applicant’s offending scheme. What is particularly disturbing about the Applicant’s conduct and what makes that conduct extremely serious, is his readiness to throw the mother-in-law straight into the face of trouble and to leave her to fend for herself in the face of being the carrier of some $724,250 worth of street value cocaine.
There was no chivalrous or big-hearted attempt by the Applicant to shield the mother-in-law from a very serious and even catastrophic outcome for her. From the first moment of questioning by customs officials, he sought to distance himself from her and deny that she was anywhere near him for all of the time he was outside of Australia. He sought to fashion his responses to best position himself because, heinously, he knew what her responses to the customs people will be. There is clearly intention and forethought to use an innocent and vulnerable person to unknowingly carry drugs across borders – Dubai and Australia.
While it may be putting things a little too stringently, I nevertheless think the Respondent’s observation is correct: the Applicant didn’t care about what happened to the mother-in-law. He placed his own monetary gain above the life of another person – the mother of his wife, no less. He exploited her trust in him as her son-in-law and he put her at serious risk for his own monetary benefit.[13]
[13] Exhibit 4, Respondent’s SFIC, page 4, paragraph [29].
None of this was lost on Judge Douglas when sentencing the Applicant. Her Honour made it clear that she was sentencing him on the basis that:
·…inferentially, you shifted the blame to [the mother-in-law];
·You decided to use her as an innocent agent to divert suspicion from you, as she is a middle-aged lady who was less likely to be suspected of carrying drugs. This was a calculated decision by you, which, in my view, was extremely callous.[14]
[14] Exhibit 5, s 501 G-Documents, G2, page 28.
The Applicant’s conduct involving the deliberate secondment of his mother-in-law to act as an unknowing drug mule is conduct squarely contemplated by this sub-paragraph (c). As such, it militates in favour of a finding that his conduct is of an extremely serious nature.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. Even a cursory review of the Applicant’s National Police Certificate demonstrates that, although relatively brief, the Applicant’s offending that was punished by the Melbourne County Court in December 2013 clearly related to extremely serious conduct. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant was sentenced to a head custodial term of 10 years with a seven year non-parole period. It is clear that the custodial term imposed on the Applicant constitutes a reflection of the objective seriousness of his offending. That, in itself, attracts an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentence imposed in December 2013 for the Applicant’s albeit singular offending episode is demonstrative of the extremely serious nature of his offending.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it.
Any finding in relation to his sub-paragraph (e) in the context of the present facts, must be approached with caution. This is because the Applicant has a singular offending event in Australia punished in December 2013. He has no other offending history in this country. However, he has had trouble with the law in Papua New Guinea. In that country, he contravened the relevant legislation applying to illegal entries and was sentenced to a custodial term of three months for this conviction.[15]
[15] Exhibit 5, s 501 G-Documents, G2, page 199.
I mention the word “caution” with regard to this sub-paragraph (e) because the Papua New Guinea offence, of course, relates to apparent offending in another country. Be that as it may, this prior conviction is suggestive of an Applicant capable of disrespecting lawful authority and compared to the extremely serious offending of which he has been convicted in this country, it is also suggestive of an escalating seriousness in his offending pattern.
A further troubling aspect of the Applicant’s evidence involved his apparently fleeting lifestyle whereby, in the course of roughly a decade (2002-2011) he found himself in a number of different countries for a prolonged period of time. I found his evidence at the hearing about this particular aspect to be both vague and contrived. According to his evidence, he was caused to be in countries as disparate as Dubai, Burkina Faso, Indonesia (at least twice), and Papua New Guinea, by governmental authorities who had told him to “go and wait there” while his visa was being processed.
The difficulties with that evidence are (1) there is no documentary support for it; (2) one cannot understand how visa/migration officials in one country could compel someone to go offshore to another country so they could process his migration/visa status and (3) much, if not all, of this country-hopping was done while the Applicant was the father of up to four infant children by his wife.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable, but cautious, finding that both the relative frequency of the Applicant’s offending and its increasing severity is such as to render his offending in this country as extremely serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. I again approach any application of this sub-paragraph (f) with caution. Although his offending in this country has been singular, there is evidence of him getting into trouble with the law in Papua New Guinea. While not determinative of any finding about criminal conduct in other countries, the Applicant’s lifestyle of moving between one country and another on the apparent pretext of waiting for visa/migration processing is hardly suggestive of a stable lifestyle involving working in one place at one time to look after his wife and four infant children who would also, one would reasonably expect, be located at that one place and at that one time.
Again, while this cannot be said with certainty, the Applicant’s repeated movements from one country to another in the period leading up to his apprehension in Australia is suggestive of something other than a stable lifestyle aimed at earning an income to look after his family. Instead, his offending in this country led to the unlawful importation of $724,250 of street value cocaine. It also deliberately and almost catastrophically compromised the life and liberty of his mother-in-law.
The application of this sub-paragraph (f) to the present factual matrix thus gives rise to the cautious finding that the cumulative effect of the Applicant’s repeated offending, is such as to render it very serious.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (c), (d), (e) and (f), of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “extremely serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider 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.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Any assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct can only be informed by his extremely serious conviction for “commission by proxy/import/export marketable quantity of border controlled drugs” for which he was sentenced in December 2013. Were he to reoffend, I am of the view that its effect on the Australian community would be very serious indeed.
I have already alluded to the very significant amount of unlawful drugs that the Applicant attempted to import into Australia and how that sort of offending captures a very significant level of victims into its orbit, be they users or addicts, and/or the resources of the state that are aimed at dealing with the often catastrophic fallout that accompanies the widespread abuse of such unlawful substances. Likewise, I have already mentioned the Applicant’s callous and deliberate willingness to place his mother-in-law directly in harm’s way for his own personal monetary gain.
In assessing any “nature of harm” resulting from any reoffending by this Applicant, one need do little more than look at the offending that has already come before Her Honour Judge Douglas and work backwards from there. Were the Applicant to reoffend in a similar way and attempt to import a similar amount of unlawful substances, the nature of the harm is obvious. But what makes his offending especially serious is that even if he were to commit to slightly lesser or similar offences such as, for example, the unlawful supply, possession or trafficking of drugs within Australia, the nature of the harm would have the potential to be as equally catastrophic. This is because of the simultaneously dual nature of the drug trade on our community. It is both subjective because if affects an individual end user or class of end users. But at the same time, it is objective because it draws a very significant range of community resources into the control and management of its consequences.
I am thus of the view that any same or similar type of reoffending by the applicant and its resulting harm, would be very serious and could conceivably involve the occasioning of very serious and even catastrophic physical or psychological harm. Any risk that it may be repeated on another person in the Australian community is simply unacceptable.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
There is no independent report or evidence informing the Tribunal about the Applicant’s risk of reoffending. It should also be noted that decisions of this type should not be delayed in order for rehabilitative courses to be undertaken by the Applicant.
The Applicant has acknowledged that his offending arose from a desire to try and get financially ahead in his life. It is clear that he wants to go into the retail food business on his own and, in order to do so, he committed the offence because he was “…hoping to take a shortcut…”[16] He accepts that he committed the offending because “…at that time, I was desperate. I had no work or qualifications.”[17]
[16] Exhibit 5, s 501 G-Documents, G2, page 83.
[17] Ibid.
The Applicant seeks to lower any perceived risk that he may reoffend by relying on his completion of certain courses while in criminal custody. He says “since that time [of the offending] I have undertaken many courses and believe I can secure gainful employment…I have used my time in jail to better myself as a person and to be able to find a good job, utilising the courses I have completed.” He added “… I have completed a Diploma in Business and have undertaken an advanced diploma to achieve an MBA.”[18]
[18] Ibid.
While it is to the Applicant’s credit that he has applied himself responsibly while in criminal custody in the completion of courses and the acquiring of certificates, any resulting contention that he is at a lower risk of offending because of that is, with respect, misplaced.
There is nothing before the Tribunal to provide any confidence that were he placed in a similar position of financial stricture and difficulty, he would not again be tempted by the easy and fast money that he sought to obtain via his extremely serious offending. In his oral evidence, he did say that his offending days were behind him and that all he wanted to do was emerge from custody and devote himself to his family. The difficulty with that contention is that he had the best part of a decade to do that from the time of his first born child (2002) until the time of his extremely serious offending (2012). Yet he did not do so.
Thus the Tribunal has no independent opinion that the Applicant has identified and controlled the impulses that have caused both his offending and the apparent estrangement from his family thus far. He shows a concerning lack of insight into the extremely serious nature of what he has done. That can be seen from these things:
·He failed to express any remorse or accept any responsibility for his actions and took the relevant charge all the way to a trial before judge and jury;
·He unsuccessfully sought to appeal his conviction before the Court of Appeal of the Supreme Court of Victoria;
·His conduct squarely and callously placed his mother-in-law into harm’s way and jeopardised her life and liberty. This did not happen by mistake. It was a deliberate part of the Applicant’s plan behind his criminal offending from the beginning;
·Until this hearing, the Applicant has failed to demonstrate any remorse about the effect of all of this on his mother-in-law and the potential effect of what he has done on the Australian community; and
·Even at this hearing, the Applicant has sought to downplay the extremely serious nature of his offending and was less than forthcoming in answering detailed questions from the Respondent’s representative about how he came to find himself on the other side of the world packing a backpack with in excess of 1.5 kilos of cocaine and then attempting to cross at least two national borders with that quantity of illegal drugs.
Accordingly, I am of the view that the Applicant’s lack of insight into his offending is evident from his capacity to understand how such offending can catastrophically affect the lives of both users and innocent people such as his mother-in-law and just how much financial and resource-based harm this type of offending causes the Australian community. I am of the view that this Applicant continues to demonstrate a risk of reoffending. The severity of the harm that could have resulted from the offending for which he has been convicted is such that any risk of its repetition is a risk that the Australian community should not have to bear.

The Respondent has helpfully provided comments from a previous sitting President of this Tribunal, His Honour Justice Davies who made the following comments about the risk of reoffending:
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”[19]
[19] Exhibit 4, Respondent’s SFIC, page 14, paragraph [46] citing Re: Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is extremely serious and (2) there is very strong and convincing likelihood that he will engage in further extremely serious conduct if returned to the Australian community, especially were he to resume his association with the organised trade in unlawful drugs.
Were he to re-offend, the harm that would be occasioned to others would, as it may very well have been from his offending to date, be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The material discloses four minor children potentially affected by the cancellation decision. Those children comprise two daughters, aged 16 and 14 respectively, and two sons aged 10 and 7 years respectively. The three eldest children reside in Australia and are primarily cared for by the Applicant’s mother-in-law. The youngest child resides in Dubai with his mother, who, of course, is the Applicant’s wife. Each of the four children were born in Australia.
There is a ready concession from the Respondent about the Applicant’s contention to be the primary care-giver and home-maker in Australia for his wife and four infant children were he to be returned to the Australian community.[20]
[20] Ibid, page 15, paragraph [52].
As noble and well-intentioned as this contention from the Applicant may be,[21] it is not supported by any evidence from the Applicant’s wife that she will act in concert with that contention. Be that as it may, the Respondent nevertheless accepts that it may be in the best interests of the Applicant’s minor children in Australia for the original decision to be revoked.[22]
[21] Exhibit 1, Applicant’s Submission, page 1.
[22] Exhibit 4, Respondent’s SFIC, page 15, paragraph [53].
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:
(a)The nature and 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 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.
Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children. The Applicant’s role in the lives of the three minor children in Australia has been significantly limited as a result of his quite lengthy term of imprisonment. He was incarcerated at the end of 2013 and will remain there until his non-parole period expires at the end of 2020. It is also apparent from the evidence that the children in Australia appear to split their time between Australia and Dubai.
As well, there are the significant periods of absence during the time the Applicant found himself in a broad range of counties for the first decade of the lives of his eldest children. One can only refer to his movement records that demonstrate he:
·Left Australia in September 2001;
·Returned 10 years later in December 2011;
·Departed again in February 2012;
·Returned in April 2012;
·Departing in June 2012;
·and then returned (for the final time before his incarceration) on 27 June 2012.
It is reasonable to find that the Applicant has been either totally or substantially absent from the lives of the children during the period of his physical absence from their lives. While he speaks of having maintained some measure of telephone and letter-based contact with them, it is clear that such contact has not been all that frequent or otherwise consistent. I consider that a slight level of weight is attributable to this sub-paragraph (a) in support of a finding that the Applicant’s migration status to remain in this country should be restored to him.
Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date. During the period December 2013 until now, he has been prevented from doing so because of his placement in criminal custody on a seven year non-parole period. Similarly, there is minimal and scant evidence of any real parental involvement between the Applicant and any of his infant children, be they in Australia or even in Dubai, during the approximate decade from the year of his first born (2002) until his incarceration in December 2013. Be that as it may, there is nevertheless a significant cumulative period of time until all of the children attain the age of 18 years. On that basis, and that basis alone, a slight measure of weight can be attributed to this sub-paragraph (b) in favour of a finding it would be in the best interests of the Applicant’s three infant children in Australia that his visa to remain here be returned to him.
Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on his three infant children in Australia. There is nothing in the material indicating any negative impact of the Applicant’ physical absence from the lives of his three infant children in Australia. Doubtless, the two eldest children are very likely to be aware of the nature of the circumstances for which their father was responsible given that his offending attracted more than a modicum of media interest. Likewise, any permanent separation between the Applicant and any of his infant children would not be beneficial to them.
Any actual or potential impact has not been verified or identified by expert medial opinion. It is thus unclear as to whether the Applicant’s prior conduct and subsequent enforced removal from the lives of his three Australian children has had any negative impact on them. The only reasonable finding is that this sub-paragraph (c) merits a slight allocation of weight in favour of a finding that restoration of the Applicant’s migration status to remain in this country is in the best interests of his children.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the three infant Australian-based children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. There are three aspects as to how this factor can be discussed. First, as a result of the complete absence of any evidence from the mother of the children, it is unclear whether a permanent physical separation between the Applicant and the children were he compelled to return to Burkina Faso would very significantly, or at all, impact upon them.
Second, we live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his three Australian-based infant children by SMS and/or social media platforms from Burkina Faso or elsewhere. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two infant children via Skype and other digital platforms.
Third, the Applicant has the ability, were he removed from Australia to go and live with his wife and children in Dubai if he so chooses.
In these circumstances, this sub-paragraph (d) is of neutral weight in assessing whether restoration of the Applicant’s migration status is in the best interests of his three minor children in Australia.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. Clearly, there are. The Applicant’s wife is the sole and primary caregiver of the youngest of the four children. She lives in Dubai with that youngest child. The other three children who reside in Australia, are primarily cared for by their maternal grandmother, who, of course, is the mother-in-law who the Applicant callously sought to implicate and utilise in his criminal offending. During the hearing, the Applicant gave evidence of the apparently faltering health of the mother-in-law but he also said she receives assistance in the home maker and parenting responsibilities for the three Australian children from another lady.
Having regard to the factual circumstances of this case, this sub-paragraph (e) is of minimal weight in favour of the Applicant in assessing whether restoration of his migration status is in the best interests of his three minor children based in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. As already alluded to, there is no evidence before the Tribunal that any of the four infant children are exhibiting behaviours indicative of adverse views they may have regarding how the physical removal of their father from their lives will negatively impact on them.
It is thus difficult to allocate any appreciable measure of weight to this sub-paragraph (f) in circumstances where the views of none of the four infant children are known and where there is nothing to suggest that the prolonged, physical absence of their father from their lives thus far or in future will have any adverse impact on them.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. As I understood the evidence, none of the Applicant’s offending occurred in the presence of the children. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent factual evidence about any physical or emotional trauma suffered by the children as a result of the Applicant’s offending conduct (as opposed to his prolonged physical absence from their lives) – is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of the Applicant with its significant absence of any convincing detail other than to make reference to a vague intention to reconstitute the totality of his family in Australia by bringing his wife and youngest infant child back here and for him to then return to fatherly and home-maker responsibilities;
(b)the complete absence of any evidence from the wife and mother of the four infant children supportive of any such intention or plan;
(c)the Applicant’s failure to take on any such fatherly/home-maker role in the approximate decade between 2002-2012;
(d)the absence of any convincing or substantive evidence about the parental role the Applicant has played and may continue to play in the lives of (at least) his three Australian-based minor children were he to be returned to their lives (in a physical sense);
(e)the respective realities that (1) the three Australian-based infant children are primarily parented by their maternal grandmother and (2) the infant child based in Dubai is primarily parented by his mother;
(f)on any reasonable view of the evidence, the Applicant has, thus far, been, at the absolute best, little more than an “as and when” parent who barely reaches the threshold of being a default option (as a carer) for either the maternal grandmother or his wife in the care of the children;
(g)the slight level of weight I have attributed to factors (a), (b), (c), and (e) of paragraph 13.2(4) of the Direction;
(h)the Respondent’s abovementioned concession that it may be in the best interests of the Applicant’s minor children for the Original Decision to be revoked:
- I am of the view that the best interests of the Applicant’s three minor children in Australia does weigh slightly in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is of a slight level of weight and does not, in any way, outweigh the weight I have attributed to Primary Consideration A.
Primary Consideration C – The Expectations of the Australian Community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[23] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect and any overarching principles and guidance provided by the Direction.[24] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
[23] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[24] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending should not retain the privilege of holding a visa to remain in Australia,[25] notwithstanding the contributions of the Applicant (if any) to the Australian community and the impact of his removal on his immediate family in Australia.[26] Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should (or should not) retain the privilege to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.
[25] Ibid, paragraphs 13.3(1) and 6.3(1)-(6).
[26] Ibid, paragraph 6.3(7).
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in July 1997 and remained here for four years, departing in September 2001;
·He returned to Australia over 10 years later in December 2011 and then intermittently departed and returned to Australia in June 2012, at which time he was apprehended for his extremely serious criminal offending involving unlawful importation of border controlled drugs;
·His approximately six years in this country (1997-2001; and 2011-2012) have seen him commit a single offence of such severity that it was punished by the Melbourne County Court by the imposition of a head custodial term of 10 years. This equates to approximately 140% of his actual time in this country prior to his incarceration in 2013. Put another way, his offending has caused him to be removed from the Australian society for seven years (the non-parole period), representing 117% of his six years in this country;
·I have found that his singular offence in this country can only be described as extremely serious and where I have also found that there is a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community; and
·There is no definitive, independent or expert evidence before the Tribunal of (1) any diagnosis of psychological or other factors predisposing the Applicant to offend, (2) that those factors have been identified and are now the subject of remedial therapy and management, (3) that the Applicant has demonstrated any convincing level of insight into his offending so that (4) this Tribunal can confidently find that there is no real risk of him re-offending.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[27]
[27] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].

Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[28] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
[28] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[29]
In substance this consideration is adverse to any Applicant…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 has been convicted of serious crimes.
[my underlining]
[29] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] 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 a 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] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[30] Justice Bromwich said:
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.
[30] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by the imposition of a very significant custodial term for his extremely serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The extremely serious nature of his offending to date;
(ii)His demonstrated lack of insight into the nature of his offending;
(iii)My finding that such lack of insight about the severity of what he has done points to a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community;
(iv)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;
(v)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed an extremely serious offence, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, re-define his life and to participate as a responsible and productive member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[31]
[31] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The material demonstrates that the Applicant has completed a commendable number of vocational courses during his time in criminal custody.[32] Likewise, the material discloses a healthy level of written communications between him and his infant children based in Australia and this militates in favour of the certain level of weight I have allocated to Primary Consideration B.[33]
[32] Exhibit 5, s 501 G-Documents, G2, pages 132-198.
[33] Ibid, pages 96-127.
The Applicant has not been dilatory during his time in this country. His own less than convincing evidence was that he has worked as “head chef” at a restaurant in Willamstown, Victoria and that he has worked in the security services industry in Papua New Guinea. With regard to the former, it was pointed out to him in cross-examination that the dates he provided for his work as a chef (2000-2005) are inconsistent with his movement records which demonstrate that he was out of the country for at least four of those five years. As for the latter, there is no letter of reference from anyone in the security services industry in Papua New Guinea attesting to the Applicant having done any such work in that country.[34]
[34] Exhibit 1, Applicant’s Submission: see curriculum vitae of the Applicant attached thereto.
I have also taken into account the respective references from the principals of the businesses operating in the wholesale food industry[35] and cleaning industry[36]. I have also had regard to a personal reference[37] provided on behalf of the Applicant attesting to his “very good character” and that he is “well respected by many members in the community.” Notably, none of those three referees were called to give evidence on behalf of the Applicant. Accordingly, I attribute minimal weight to those documents.
[35] Ibid, see reference dated 2 March 2009 annexed thereto.
[36] See exhibit 3, reference from the principal dated 19 March 2019.
[37] See exhibit 2, reference from personal referee dated 15 March 2019.
Tellingly to my mind, there is a noticeable lack of any letter of support or any other statement from the Applicant’s wife or, for that matter, his mother-in-law. With regard to the former, one would have expected some kind of expression of written support in an application such as this which is surely critical to the destiny of the family unit comprising herself, the Applicant and the four infant children. Yet there nothing of this sort on the file.
Similarly, the Applicant spoke of him reaching some kind of reconciliation with or expression of contrition towards the mother-in-law. I note that he wrote to her about two years following his incarceration.[38] Notably, no reply has been forthcoming from her.
[38] Exhibit 5, s 501 G-Documents, G2, page 128, letter of Applicant to his mother-in-law dated 26 August 2015.
Further, it can be fairly argued that any likelihood of him reoffending is yet to be tested in the community because he has been removed from that community on a continuous basis.
Conclusion: Primary Consideration C
Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “Other Considerations” disclosed in the Direction:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[39]
[39] The Direction, paragraph [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
There is nothing in the material suggesting of the Applicant having made assertions or provided evidence about any claim that Australia’s non-refoulement obligations may be enlivened in relation to his circumstances.
Thus, the Respondent’s contention is correct: this Other Consideration (a) is of no relevance to this decision.
(b) Strength, nature and duration of ties
The Applicant is presently aged 42 years, having arrived in Australia as a 20 year old in 1997. He remained here for four years until 2001, then departed Australia for 10 years until 2011. He then returned intermittently until July 2012 when he was apprehended for his offence to which he was sentenced in December 2013.
Sub-paragraph 14.2(1)(a)(i) is of minimal relevance and of minimal assistance to the present consideration. As I understood the Respondent’s submission, this sub-paragraph should weigh against the Applicant because he did – numerically at least – commence offending soon after his arrival here. This is because he arrived here in 1997 and remained here until 2001. The Respondent contends that he commenced offending about four or five years after coming here because his offending occurred during his approximately fifth year in this country. While I understand this contention, I think it is taking the ambit of this sub-paragraph slightly too far because it ignores the intervening decade when he was not in this country.
Sub-paragraph 14.2(1)(a)(ii) stipulates that more weight should be allocated to this Other Consideration (b) in circumstances where the non-citizen has spent time contributing positively to the Australian community. Absent the above-mentioned referral from his personal friend,[40] there is little to no evidence to indicate any positive contribution by the Applicant to the Australian community during his five or six years in this country. Accordingly, minimal or no weight is attributable to this particular sub-paragraph.
[40] See exhibit 2, reference from personal referee dated 15 March 2019.
Sub-paragraph 14.2(1)(b) looks to the strength, duration and nature of any family or social links between the Applicant and Australian citizens, Australian permanent residents, and/or, persons who have an indefinite right to remain in Australia. It is plain from the material that the Applicant, as the biological father of three infant children in Australia, does have a connection with them both as their biological father and due to them having an indefinite right to remain in Australia. To an extent (apart from any Australian connection), the same applies to the wife and the youngest infant child, who are both Australian citizens but who reside in Dubai.
The contrarian factors against a favourable application against sub-paragraph 14.2(1)(b) are that there are no positive indications from either (1) the mother-in-law/maternal grandmother of any willingness to surrender the primary parental and home-maker responsibilities for the three Australian-based infant children and (2) the wife and mother of the four children of any intention to re-constitute and resituate the entire family unit (the wife, the Applicant and the four children) in Australia – as contended by the Applicant during his oral evidence before the Tribunal.
Be that as it may, I am of the view that a moderate level of weight can be allocated to this Other Consideration (b) on the basis that, pursuant to sub-paragraph 14.2(1)(b), at the very least, the three infant children in Australia are people who have an indefinite right to remain in this country and do have family or social links to the Applicant now before the Tribunal.
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration (c) is of relevance in determining this application. There is no evidence to suggest that the Applicant has had any link to a major project or the delivery of an important service in Australia. There is no evidence before the Tribunal indicating there would be any impact on Australian business if the mandatory cancellation decision is not revoked.
(d) Impact on victims
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on any such victim – in this case, undeniably, the unfortunate mother-in-law whose rights and liberties were so severely compromised by the Applicant’s offending.
I accept that such evidence may be difficult for the Respondent to now adduce given the inevitable reality that the mother-in-law may want this matter well and truly behind her. The further reality is that victims per se are difficult for the Respondent to produce because no amount of the unlawful drug reached its intended destination. This in no way ameliorates the extreme seriousness of the Applicant’s offending.
The respondent’s contention is thus correct. The Applicant’s offending could have caused significant and substantial harm to the Australian community in general, and, particularly, to his mother-in-law. Accordingly, I find that this factor attracts a measure of weight in favour of non-revocation of the Applicant’s visa and thus weighs against the Applicant.
(e) Extent of impediments if removed
The relevant paragraph in the Direction is paragraph 14.5(1). It requires decision makers to take three specific things into account when assessing the extent of any impediments a person may face if removed from Australia. Those factors comprise
(a)the person’s age and health;
(b)whether there are any substantial language or cultural barriers; and/or
(c)any social/medial and/or economic support available them in that country.
The Applicant is currently 43 years of age. He indicates that he suffers from asthma and hepatitis B and that he is medicated for both of those conditions.[41] There is a ready acknowledgement by the Respondent that available health services in Burkina Faso may not be of a comparable standard to those of Australia.[42] Nevertheless, as a citizen of Burkina Faso, he will be able to access the medical services available in that country at a standard that is available to other citizens of Burkina Faso.
[41] Exhibit 5, s 501 G-Documents, G2, page 81.
[42] Exhibit 4, Respondent’s SFIC, page 21, paragraph [88].
During his evidence at the hearing, the Applicant spoke of having forgotten both French (the apparent official language of Burkina Faso) and his own tribal language. That contention is, to my mind, difficult to sustain in circumstances where he completed his primary and secondary schooling in that country, and at the very least, commenced tertiary level study in that country. He contends that his time in Australia and elsewhere has caused him to largely forget both languages but I am of the view that such a contention lacks credibility.
He has, as mentioned, completed a notable list of vocational courses while in criminal custody. Absent his asthma and hepatitis B conditions, he otherwise appears to be robust and strong in terms of his physical condition. There is otherwise little or nothing militating against his capacity to re-establish himself and support himself in Burkina Faso.
As against these factors, there is the Applicant’s oral evidence about largely having lost touch with both his siblings and his mother during his time away from Burkina Faso. As I understood his evidence, his mother spent some time in Dubai with his wife and the youngest of the four infant children but that she has since been compelled to leave Dubai and has since probably returned to Africa. The Applicant is not certain in which African country his mother currently resides in. He thinks she may have relocated to Ghana. He says “My siblings and I have left Burkina Faso a long time ago to find life elsewhere around the world”.[43]
[43] Exhibit 1, Applicant’s submission.
Having regard to the factors in this paragraph 14.5(1) governing the application of this Other Consideration (e), I am mindful that the Applicant may face some slight impediments were he compelled to return to Burkina Faso. However, I am of the view that those impediments are not insurmountable because of two things. First, with his work experience, qualifications, and familiarity with the social and cultural life in Burkina Faso, having lived there for almost half his life, he can reasonably be expected to re-establish his life in that country. Second, he has the ability to avoid Burkina Faso all together and to go and live with his wife and all of his children in the United Arab Emirates, specifically Dubai if he so chooses.
Having regard to the totality of the material relevant to this Other Consideration (e), I consider that it is of neutral weight to my consideration.
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
(d)International non-refoulement obligations: is of no weight;
(e)Strength, nature and duration of ties: is of moderate weight;
(f)Impact on Australian business interests: is of no weight;
(g)Impact on victims: weighs against the Applicant;
(h)Extent of impediments if removed: is of neutral weight.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.
·Primary Consideration B is of slight weight;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them even when combined with each other or with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 136 (one hundred and thirty -six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[SGD]..............................................
Associate
Dated: 16 April 2019

Date(s) of hearing: 15 April 2019

Applicant: In person

Advocate for the Respondent: Ms Jiadi Liang (Solicitor)

Solicitors for the Respondent: Clayton Utz

[2019] AATA 717

16 April 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Standing

Date(s) of hearing:	15 April 2019
Applicant:	In person
Advocate for the Respondent:	Ms Jiadi Liang (Solicitor)
Solicitors for the Respondent:	Clayton Utz