Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 19

Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 19 (13 January 2023)
Division:GENERAL DIVISION
File Number: 2022/8852
Re:Phillip Rewha

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:13 January 2023
Place:Perth

The decision of the delegate of the Respondent dated 21 October 2022 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
......................[Sgd]...........................................
Brigadier AG Warner, AM LVO (Retd), Member
Catchwords
MIGRATION – s 501CA(4) of the Migration Act – decision of delegate of Minister not to revoke cancellation of the Applicant’s visa – character test – Applicant sentenced to two years imprisonment – whether there is “another reason” to revoke cancellation of the Applicant’s visa – Ministerial Direction No. 90 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to Australian community – best interests of minor children in Australia – expectations of Australian community – extent of impediments if removed – strength, nature and duration of ties to Australia – impact on Australian business interests – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth) ss – 197A, 499, 499(1), 499(2A), 500(1)(ba), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(6)(c), 501(7), 501(7A), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Spent Convictions Act 1988 (WA)
Cases
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
FYBR v Minister for Home Affairs [2019] FCAFC 185
Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Varley v Minister for Home Affairs [2019] AATA 376
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce, 2015
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 5.2(5), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(a)(i), 8.1.(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2.1, 8.3, 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.2, 9.3, 9.4, 9.4.1, 9.4.2
United Nations Convention on the Rights of the Child, adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) preamble, art 3
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
13 January 2023
The Application

The Applicant seeks review of the decision of a delegate of the Respondent dated 21 October 2022 (G3/4-7), not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled under s 501(3A) of the Act on 7 October 2021 (G24/91-95) on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State (the Cancellation Decision).
The application for review was made on 27 October 2022 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act. The Respondent accepts that the application was made within time, and the Tribunal is satisfied that it has the jurisdiction to review the decision.
The Issue
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the Applicant’s visa made under s 501(3A) of the Act. This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
The Hearing and Evidence
The application was heard on 20 December 2022. The Applicant was represented by Mr Hamish Glenister of William Gerard Legal Pty Ltd and the Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers. The Applicant attended the hearing and gave evidence on affirmation. The following witnesses appeared by telephone conference and gave evidence on affirmation:
(a)Emma Green (the Applicant’s partner);
(b)Stephanie Rewha (the Applicant’s sister); and
(c)Danielle Rewha (the Applicant’s daughter);
The following documents were admitted into evidence:
·The Section 501 “G Documents” (G1-G26, pp1-121);
·Applicant’s Statement of Facts, Issues & Contentions dated 28 November 2022 (Exhibit A1);
·Applicant’s undated statement filed 28 November 2022 (Exhibit A2);
·Statement of Ms Emma Green filed 28 November 2022 (Exhibit A3);
·Statement of Ms Stephanie Rewha dated 24 November 2022 (Exhibit A4);
·Statement of Mr Tawhiri Rewha dated 24 November 2022 (Exhibit A5);
·Cyrenian House Counsellor’s support letter dated 2 November 2022 (Exhibit A6);
·Support letter, Ms Olivia Papuni dated 23 November 2022 (Exhibit A7);
·Certificate of Completion – Methamphetamine Program dated 1 June 2022 (Exhibit A8);
·Letter from Karnet Prison Farm dated 26 October 2022 and attaching Applicant’s transcript issued 26 October 2022 (Exhibit A9);
·Respondent’s Amended Statement of Facts, Issues and Contentions dated 2 December 2022 (Exhibit R1); and
·Summons Bundle (SB1-SB5, pp1-175) (Exhibit R2).
Background
The Applicant is a New Zealand citizen born in New Zealand in 1971 (G10/46). He first arrived in Australia in March 1991 but commenced living in Australia from May 1995 and has departed Australia on ten occasions since that time (G23/89-90).
The Applicant’s criminal record in Australia commenced in 2006 when he was convicted of “Excess 0.08%” (G4/25; Exhibit R2, SB45; 52). In December 2010 he was convicted of a similar offence “Exceed 0.05g alcohol per 100ml of blood” (Exhibit R2, SB44; 55). On each occasion he was fined, and his driver’s licence suspended (G4/25).
On 17 February 2021, the Applicant suffered an overdose consequent to injecting heroin (Exhibit R2, SB3/85).
On 30 March 2021, the police conducted a search of the Applicant’s home initially looking for his nephew. During that search police located a room which had been fully converted for the cultivation of cannabis (Exhibit R2, SB3/66) and contained four mature cannabis plants. The police also found the following items belonging to the Applicant (G5/28; Exhibit R2, SB1/28; 3/58-83; 4/102-104):
(a)13.45 grams of methylamphetamine in multiple clipseal bags;
(b)a tick sheet, digital scales and clipseal bags throughout the address;
(c)a mobile phone which revealed communications relating to him selling drugs to other people;
(d)$1,190 in cash;
(e)a 4 centimetre flick knife;
(f)a shotgun with a ground off serial number and a rifle that had been stolen in a burglary as well as ammunition;
(g)a flick knife in a draw under the coffee table which also contained methylamphetamine;
(h)two sandwich bags containing 56 grams of cannabis inside the freezer;
(i)two sandwich bags containing 28 grams of cannabis in the Applicant’s bedroom;
(j)seven grams of cannabis in a tobacco container on a coffee table in the living room;
(k)a clipseal bag containing 0.1 grams of cocaine in a drawer under the coffee table in the living room;
(l)a total of nine glass smoking implements in the kitchen cupboards, living room, bedroom and tv cabinet some containing clear traces of methylamphetamine;
(m)eight tabs of LSD in the Applicant’s bedroom;
(n)one gram of psilocybin mushrooms in the Applicant’s bedroom;
(o)one gram of dimethyltryptamine in multiple clipseal bags in the laundry;
(p)smoking implements containing traces of cannabis and grinders used to grind cannabis in the kitchen and living room;
(q)25 oxycodone tablets in the Applicant’s bedroom;
(r)12 bars of alprazolam prescribed to another person in the Applicant’s bedroom;
(s)0.1 grams of MDMA in the Applicant’s bedroom;
(t)14 Pregabalin tablets prescribed to another person in the Applicant’s bedroom;
(u)nine Diazepam tablets in the Applicant’s bedroom;
(v)15 tablets of Melatonin in the Applicant’s bedroom;
(w)eight Quetiapine tablets and an Adderall tablet in the Applicant’s bedroom;
(x)an Adderall tablets in the Applicant’s bedroom;
(y)four mature cannabis plants in the cultivation room and a further three cannabis plants in the backyard;
(z)a small firework in the Applicant’s bedroom; and
(aa)65 Dexamphetamine tablets in the Applicant’s bedroom.
The Applicant was remanded in Hakea Prison from 30 March 2021 to 13 May 2021 (Exhibit R2, SB1/3).
On 14 September 2021, the Applicant was convicted, after pleading guilty, in the Perth District Court of the following offences (G5/27-32):
(a)having ready access to both weapons and illegal drugs and sentenced to two months imprisonment (concurrent);
(b)possession of stolen or unlawfully obtained property and sentenced to four months imprisonment (concurrent); and
(c)possession of a prohibited drug with intent to sell or supply (methylamphetamine) and sentenced to two years imprisonment (concurrent).
On 1 October 2021, the Applicant was convicted in the Magistrates Court of a number of further offences arising from the search on 30 March 2021 (G4/24; G5/28). Those offences included (G4/24):
(a)unlawfully possessed a controlled or prescription drug (five counts);
(b)possessed a prohibited drug (four counts);
(c)possession of a drug or substance;
(d)possess a prohibited drug (methylamphetamine);
(e)possessed a prohibited drug (cocaine);
(f)possess a prohibited drug (cannabis);
(g)possess a prohibited drug (MDMA);
(h)possessed drug paraphernalia in or on which there was a prohibited drug or plant (two counts);
(i)cultivate a prohibited plant;
(j)unlicensed person possess firearm/ammunition (four counts); and
(k)unlicensed possession of dangerous goods.
The Applicant received fines for the majority of these convictions with the exception of two of the four counts of unlicensed person possesses firearm/ammunition (para 13(j) above refers), for which terms of imprisonment of two months each, concurrent from 1 October 2021 were imposed.
On 7 October 2021, the Applicant was given notice that his visa was cancelled pursuant to s 501(3A) of the Act (G24/91). The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was 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 Territory (ss 501(6)(a) and 501(7)(c) of the Act).
On 3 November 2021, the Applicant requested revocation of the cancellation of his visa (G3/9; G7/35-39). On 19 October 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision (G3/7). The Applicant was notified of the delegate’s decision on 24 October 2022 (G26/121).
On 25 October 2022, the Applicant sought review of this decision in the Tribunal (G2/3), stating that he “would like to appeal the original revocation decision as I believe the decision is wrong”.
Legislative Framework
Section 501(3A) of the Act relevantly provides that:
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.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or …
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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.
(Original emphasis.)
Ministerial Direction No 90
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under 7this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Section 499(2A) of the Act provides that, “[a] person or body must comply with a direction under subsection (1).”
On 8 March 2021 the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA”. (Direction 79).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are stated to be as follows:
(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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 lists the other considerations that must be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
Consideration
CHARACTER TEST
The Tribunal may revoke the Cancellation Decision if it is satisfied that the Applicant passes the character test.
The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record.” Section 501(7)(c) of the Act states that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) of the Act provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”.
The Applicant does not pass the character test because he has been sentenced to terms of imprisonment totalling more than 12 months and he therefore has a substantial criminal record.
The Applicant concedes that he does not pass the character test (Exhibit A1).
As the Tribunal is not satisfied that the Applicant passes the character test, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. Therefore, the Tribunal in this matter must decide whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is “another reason” why the decision under s 501(3A) of the Act should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The Applicant’s reason for making this application to the Tribunal is given at para [17] above. In written and oral submissions, the Applicant provided reasons in support of his contention that the cancellation of his visa should be revoked. The reasons listed below are distilled from the Applicant’s submissions and taken into account, together with the totality of his submissions, where relevant under the Tribunal’s discussion of the Direction 90 considerations:
(a)Other than relatively minor offending over 10 years ago, all the Applicant’s offences arise from the search warrant executed on his residence on 30 March 2021.
(b)Contrary to the Respondent’s submissions (Exhibit R1, [29.3]), the Applicant contends that he did not provide false and misleading information to the Department on incoming passenger cards as he had only two traffic convictions and a spent conviction for a criminal offence, and it was unclear whether the provisions allowing non-disclosure of spent convictions under the Spent Convictions Act 1988 (WA) apply to passenger cards.
(c)The Applicant has a strong employment history and good employment contacts.
(d)The Applicant’s offending is linked to his previous addiction to methylamphetamine; however, he has been abstinent since March 2021 and has completed a substance abuse program and engaged with Narcotics Anonymous. The Applicant is confident that with counselling post-release and the support of family and friends, he would avoid the poor choices which led to his offending.
(e)The Applicant has a large family in Australia including a partner, stepchildren, sister, adult children and a grandchild who will be devastated should he be removed from Australia.
(f)The Applicant has been in Australia for most of the last 26 years and considers himself part of the community rather than an immigrant. He has contributed to the community through coaching and managing local rugby union club, and has assisted members of his extended family to settle in Australia.
(g)The Applicant submits that he was a model prisoner, and having been granted parole until 30 July 2023, submits that the Prisoners Review Board must consider him an acceptable risk to the safety of the community.
(h)Removal to New Zealand would separate him from much of his family and would cause stress that might impede his reestablishment and standard of living.
The Respondent concluded submissions in the hearing as follows (Transcript/88):
...the primary consideration of the protection of the Australian community and the expectation of the Australian community weigh heavily against revocation and outweigh any factors identified by the applicant in favour of revocation such that the correct decision for this tribunal is to affirm the decision under review.
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
The Applicant concedes that this first primary consideration weighs against revocation (Exhibit A1/2).
Paragraph 8.1 of Direction 90 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
(2) 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.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)    without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)    without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)    with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)    the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)    the cumulative effect of repeated offending;
f)     whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)    whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Although the Tribunal notes the Applicant’s drink driving offences in 2006 and 2010 (see para 8 above), the Tribunal is of the view that the passage of time without similar offending obviates the need to take these offences further in the context of this first primary consideration.
In Exhibit R1 at [29.3], the Respondent submits that the Applicant “provided false and misleading information to the Department by virtue of his incoming passenger cards which incorrectly stated that he did not have any criminal convictions”. Paragraph 8.1.1(1)(f) of Direction 90 requires the Tribunal to consider this submission. The Tribunal does so, and noting the Applicant’s relevant written submissions (Exhibit A1, para 19; see also para 37(b) above), takes this issue no further in this consideration.
On 14 September 2021, the Applicant was sentenced to a term of imprisonment of two years in the Perth District Court (see para 12 above). On 1 October 2021 in the Magistrates Court, the Applicant received two further sentences each of two months’ imprisonment to be served concurrently (see paras 13-14 above). Terms of imprisonment are the last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22]). In the Applicant’s case he has been sentenced to more than one term of imprisonment and the Tribunal considers this a reflection of the seriousness of the Applicant’s offending behaviour.
In sentencing the Applicant on 14 September 2021, Lonsdale DCJ made clear that the Applicant’s offending was serious, stating (G5/29-31):
…your offending was very serious, Mr Rehwa. You were engaged in the distribution of prohibited drugs albeit in small amounts for profit.
…
However, this offending was not an isolated incident and it appears from all of the circumstances that you had been routinely disobeying the law for a significant period of time.
…
You have only a minor criminal record relating to traffic offences…Balanced against that, however, the State draws to my attention the fact that you have been routinely using drugs and dealing in drugs over a long period of time. So you don’t quite get the benefit that a first offender who comes to the court with a good record would otherwise get…only terms of immediate imprisonment are appropriate for people who deal in methylamphetamine...
Paragraph 8.1.1(1)(e) of Direction 90 requires the Tribunal to have regard to the cumulative effect of repeat offending. Noting Judge Lonsdale’s remark that the Applicant had been offending for a significant time, and the convictions in the Magistrates Court on 1 October 2021 strongly support a finding that the Applicant’s offending was very serious. The multiple offences, the variety of illicit substances and prescription drugs prescribed to others, and the possession of firearms and ammunition can only be seen as cumulatively having an adverse and harmful impact on the community.
The Tribunal finds the possession of firearms and ammunition while involved in drug dealing to be a serious element of the Applicant’s offending, particularly in the context of the Applicant’s inconsistent evidence regarding the possession of these items. When questioned following the search of his home on 30 March 2021, the Applicant told police that the “Ruger 10/22 semi-automatic rifle” (stolen in a burglary in 2015) and the “Mossberg Pump Action Shotgun” with serial number ground off had been in his possession for more than five years (Exhibit R2, SB3/71-72). However, during cross-examination, the Applicant told the Tribunal that he purchased both firearms a few weeks before his arrest and after he started selling drugs (Transcript/16). In her evidence before the Tribunal, Ms Green said that the Applicant had told her that some people had left the guns at his house and had not picked them up (Transcript/70). On questioning, the Applicant declined to reveal the identity of the person who sold him the weapons. He said that he purchased the weapons to hunt rabbits but had not used either weapon (Transcript/16-19). The Tribunal finds the Applicant’s explanation for the possession of these firearms entirely implausible.
Ms Rewha, the Applicant’s daughter, told the Tribunal that during a visit to the Applicant’s house some six months prior to his incarceration, she had observed the cannabis growing in her brother’s former bedroom, and told the Applicant “it wasn’t a good idea”. Ms Rewha said that the Applicant responded that he was growing the cannabis to pay for bills and stuff (Transcript/76). The fact that the Applicant continued his offending behaviour despite the concern of his adult daughter contributes to a conclusion that the Applicant’s criminal behaviour is serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen 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 serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of harm to individuals or the Australian community (para 8.1.2(2)(a))
Paragraph 8.1.2(1) of Direction 90 further provides that “[s]ome conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable”. Further drug related offending by the Applicant should be seen as having the potential to cause a broad range of harm to the Australian community including physical harm, mental illness, violence, chronic health issues, financial harm, loss of productivity, expenditure of medical and other resources and engagement with the criminal justice system, all of which are serious and have significant cost to the broader community. The selling and supply of prohibited drugs also leads to loss of life and disruption to families.
In Exhibit R1 at paragraph [31], the Respondent relevantly cites the Federal Department of Prime Minister and Cabinet’s 2015 Final Report of the National Ice Taskforce, which describes the “distinct problem for society” caused by methylamphetamine (also known as “ice”):
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
The Applicant submits that he is not a violent person and has no history of any violent offending. He further explained that his offending has been driven primarily to fund his methamphetamine use (Exhibit A2/1). He submits that his drug use began after a series of traumatic events in his life – the breakdown of his marriage (G9/44), the early death of his father in 1982 (G10/55; Transcript/37) the death of his mother in 2018 (G9/44; G13/66), his children leaving home in 2018-2019 (G5/30; Transcript/38), and the effect of COVID on his business (G10/55).
While the Tribunal accepts and sympathises with the Applicant’s circumstances which give some context to his offending, they are circumstances which many others might share. The Applicant is a mature-age adult and his circumstances do not excuse the serious nature of his offending. The Tribunal is satisfied that the Applicant’s offending was driven by his drug addiction.
The evidence indicates the Applicant’s serious and entrenched polysubstance abuse:
(a)During cross-examination by Ms Jones-Bolla, the Applicant stated that the smoking implements, and drugs found at his home on 30 March 2021 including – cannabis, cocaine, LSD, DMT, methylamphetamine, MDMA, oxycodone, psylocibin mushrooms, alprazolam, diazepam, circadine (melatonin), quetiapine (Seroquel), Adderall and dexamphetamines – were all for his personal use (Transcript/21-26).
(b)In his letter to the Court (G13/67), Mr Chris Rewha, the Applicant’s elder brother, stated that the Applicant “admitted to trying heroin and to using methylamphetamine regularly”.
(c)The Applicant suffered an overdose and was hospitalised on 17 February 2021 (para 9 above refers).
(d)Ms Green, the Applicant’s partner, told the Tribunal that she knew the Applicant “smoked a little bit of dope recreationally” (Transcript/66).
(e)The Applicant’s medical Drug and Alcohol History recorded at prison on 6 April 2021 notes that the Applicant reported amphetamine use everyday, mainly smoking it and sometimes injecting (Exhibit R2, SB5/141). The Applicant told the Tribunal that he had reported this amphetamine use accurately (Transcript/30).
(f)The Applicant was a poor historian and somewhat reluctant witness under cross- examination regarding the extent of his polysubstance use. The Applicant’s evidence included the following:
(i)He probably started cannabis use in his late teens through until 1995, and then started again in 2017/2018 and increasing his use until 2020 (Transcript/26-27);
(ii)He used cocaine between 2020 and March 2021 but rarely as “it was quite hard to get” (Transcript/28);
(iii)He used LSD once every two months from 2017 until March 2021 (Transcript/31);
(iv)He used psilocybin mushrooms throughout the entire time, stating he used “[w]hen I had a free night and everything was sorted, kick back and relax” (Transcript/32); and
(v)He first used methylamphetamine from 2015, but also said that he had been truthful with his defence lawyer whose submissions to the District Court filed on 10 September 2021 stated at [9] (Exhibit R2, SB1/2; Transcript/28):
In 2005, Mr Rehwa bought a house… which he still owns. It was around this time that he first tried methylamphetamine. After this, he used small amounts from time to time when he wasn’t working. He had also smoked cannabis since he was 15, but stopped when urinalysis testing was introduced on the mines.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (para 8.1.2(2)(b))

The Respondent contends that there is insufficient evidence for the Tribunal to conclude that the Applicant is now rehabilitated, and that the Tribunal should instead conclude that the Applicant’s risk of further offending is significant and unacceptable (Exhibit R1, para 33).
The Applicant claims that he has remained abstinent from drugs following being remanded into custody (G5/30), however that abstinence has been tested in the community to a limited extent only and has not been tested without the safety net of bail conditions or parole conditions whilst in immigration detention. In closing submissions, Mr Glenister emphasised the Applicant’s engagement in through-care counselling with Cyrenian House (Exhibit A6; Transcript/88) and the assessment by the Department of Justice that he was a low risk of reoffending (Transcript/89).
The Respondent however notes that the Applicant’s rehabilitation is limited and states that (Exhibit R1, para 33.2):
…11 Narcotics Anonymous meetings between April 2022 and June 2022, a six session Methamphetamine Program in June 2022 and three counselling sessions prior to his transfer to detention in July 2022 (G11/60; the applicant’s evidence filed 28 November 2022). It is notable that the applicant only commenced any rehabilitation some six months after his visa was cancelled and only for a limited period.
There is lack of any evidence and/or any submissions in relation to whether the Applicant has engaged in, or intends to engage in, psychological or grief counselling, or any other interventions to address the matters that the Applicant considered precursors to his offending and his drug abuse (para 52 above refers).
The Tribunal notes that despite members of his family being aware of his drug use, the experience of an overdose and hospital admission, his partner encouraging him to seek rehabilitation or counselling after that overdose (Transcript/67), the consequences of the execution of a search warrant on his home on 30 March 2021, the termination of his employment as a consequence of failing a drug test, and the opportunity presented by his release on bail, there is no evidence that the Applicant sought intervention to address his drug addiction or offending behaviour prior to his incarceration.
The Applicant is currently on parole, and relies on a risk assessment by the Department of Justice (See para 56 above). Such assessments are conducted for purposes quite different to the considerations of the Tribunal in the present matter and involve specific to purpose assessment tools, availability of programs, length of sentence etc. And as correctly submitted by the Respondent (Exhibit R1, para 33.5):
…the Tribunal does not have the same comforts of the parole board (being conditions and the prospect of being returned to custody) when assessing the applicant’s risk: Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256 at [75]-[76].
Further, apart from the Cyrenian House letter dated 2 November 2022 (Exhibit A6), there is no authoritative or professional opinion or assessment before the Tribunal to indicate that the Applicant’s risk of reoffending and risk of further harm to the community has been mitigated.
Senior Member Dr Evans-Bonner made the position clear in Varley v Minister for Home Affairs [2019] AATA 376 at [110]:
…The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
In terms of protective factors, the Tribunal notes the Applicant’s submission that he is truly remorseful for his offending, has supportive family in Western Australia, and has employment with a business providing auction services in Perth (G11/60-61). The Tribunal also has regard to the expectations of the Applicant’s partner, Ms Green (the Applicant met Ms Green in 2019 and they commenced a relationship in mid-2020 (Transcript/68)), as stated in her letter (G12/63):
I know that Phil is not going to re-offend because he showed me our family means the most to him when he was on bail. He worked tirelessly making sure he had things set up for us and tried to spend as much quality time with us and cut off old ties which confirmed to me, that he was committed to our family and the plans we have for our future.
In relation to these protective factors or supports, the Respondent submits (Exhibit R1, para 33.4):
The applicant’s supports, for example his partner with whom he has been in a relationship with since June 2019 (G10/49) and his family who were aware of his drug use (G13/67) have not been protective factors in the past and the Tribunal can have no confidence that those supports will produce a different result into the future. It is particularly notable that the applicant’s nephew is (or was) known to police and the applicant was selling drugs to his close friends (SB 3). The applicant’s proposed employment (G11/61) equally cannot be seen as a protective factor given that he intends to return to the same job that he had when the offences were committed (G10/56).
Having regard to the material before it, the Tribunal agrees.
The Tribunal accepts that the Applicant’s convictions and imprisonment are likely to have had a salutary effect on him and that the possibility of removal from Australia would provide motivation not to reoffend. However, the Applicant has a long history of illicit substance abuse including daily use of methylamphetamine, together with firearms convictions. His claimed abstinence from substance use, although commendable, has been achieved under the controlled environment and conditions of prison, immigration detention and parole. The Tribunal finds that on balance there remains a likelihood, albeit moderate, that the Applicant will reoffend.
Tribunal’s conclusion on the first primary consideration
Having considered the nature and seriousness of the Applicant’s conduct, the potential harm to the Australian community should he commit further offences or engage in other serious conduct, and having regard to the likelihood of the Applicant reoffending, the Tribunal finds that the need to protect the Australian community from criminal or other serious conduct in this case weighs heavily against revocation of the Cancellation Decision.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 recognises that the government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. Paragraph 8.2(2) of Direction 90 states that his consideration is relevant in circumstances where the non-citizen has been convicted of an offence involving family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence.
The Tribunal accepts the Respondent’s submission that there is no evidence relevant to this second primary consideration, and that accordingly it is neutral (Exhibit R1, para 35).
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) 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.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Tribunal is also mindful of art 3 of the United Nations Convention on the Rights of the Child which provides:
1In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration…
and the preamble which provides:
…the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding…
In his Personal Circumstances Form dated 20 October 2021, the Applicant has identified himself as the step-father of his partner’s daughters E 15 years old and A 11 years old (G10/52). The Applicant has also identified the following minor children in Australia who will be affected by the Tribunal’s decision:
(a)His granddaughter, Z (G9/43; G10/52);
(b)His great-nieces MP and MAP (G10/52); and
(c)His great-nephews N and S (G10/52).
The partner’s children E and A
The Respondent submits that although this factor might weigh in favour of revocation of the Cancellation Decision in that it is in these children’s best interests for the cancellation to be revoked, it does so only to a limited extent (Exhibit R1, para 38).
The Tribunal has regard to the following in its considerations:
(a)The Applicant has stated that if he were removed from Australia his partner would be a single mother without any provider (G10/57) and that he has developed a strong bond with both daughters who would be devasted if he were deported (G10/51).
(b)There are no submissions from the children before the Tribunal, however Ms Green refers to the negative impact that the Applicant’s incarceration and detention has had on herself and the children, and states in her letter: “I know having him in our lives has been a massive benefit and without him, I do not see a positive future for myself and my girls” (G12/63).
(c)When asked to consider whether she and her daughters would move to New Zealand should the Applicant be removed from Australia, Ms Green told the Tribunal that “…if I have to pick up my life and move to New Zealand, I would, but …preferably not”. Ms Green said that such a move would not be easy (Transcript/66).
(d)The evidence is that the Applicant’s relationship with his partner’s children is of relatively short duration. The Applicant and Ms Green only met in 2019 and were then in a relationship for less than one year prior to his incarceration (G12/62; para 63 above refers). There is no evidence that they were living together prior to his incarceration and no evidence that the Applicant had overnight contact with or supervision of these children.
(e)The Applicant claims that he would see his partner’s children every day on his rostered weeks off (G10/51). Ms Green told the Tribunal that she and her daughters would visit the Applicant’s home more than once a week (Transcript/68).
(f)Paragraph 8.3(4)(a) of Direction 90 prescribes that less weight should generally be given where the relationship is non-parental and there have been long periods of absence. In this case, the children’s mother fulfils a parental role and there is no evidence in relation to any financial support that the Applicant has provided the children. Further, there have been long periods of absence as a result of the Applicant’s incarceration and immigration detention.
(g)The Applicant is only likely to play a positive role in the children’s lives should he be able to abstain from drug use and cease offending (paragraph 8.3(4)(b) of Direction 90 refers).
(h)The Respondent submits (Exhibit R1, para 38.4), and the Tribunal accepts, that:
There is no independent evidence of the effect that any separation would have on the children (paragraph 8.3(4)(d) of Direction 90). Nor is there any obvious impediment to the applicant continuing to contact children via electronic means.
(i)Paragraph 8.3(3) of Direction 90 requires that if there are two or more relevant children, the Tribunal must give each child individual consideration to the extent that their interests may differ. The Tribunal does so in the two paragraphs which follow.
(j)The Applicant states that he and E have a mutual passion for music and the guitar (G10/51). Ms Green told the Tribunal that E’s father has never been involved in her life (Transcript/64), and that the Applicant had helped guide her through issues with depression and self-harm (Transcript/66).
(k)Ms Green told the Tribunal that A’s father had some involvement in her life a while ago, but the relationship “became abusive and really toxic for me and the girls” (Transcript/64). The Applicant states that he and A enjoy sport and basketball and that he wants to be a positive role model for her (G10/51).
(l)Before reaching a conclusion regarding the best interests of the Applicant’s stepdaughters E and A, the Tribunal notes that the Applicant’s relationship with these children existed during the Applicant’s offending, when he was both using and selling drugs. Further, the evidence is that the children were regularly visiting the Applicant’s home where cannabis was being cultivated in a bedroom and in the yard, a range of drugs were present, and where the Applicant maintained two unsecured firearms and related ammunition. Such circumstances cannot be viewed as being in the best interests of any children.
Ms Green believes her daughters would benefit from the Applicant’s presence in their lives as a male role model, and revocation of the Cancellation Decision would enable the Applicant’s relationship with E and A to continue in Australia. However, any potential for the Applicant to act as a role model would depend on the Applicant refraining from abusing drugs and reoffending. Having careful regard to all the above, the Tribunal concludes that the best interests of E and A can be given only moderate weight in favour of revocation of the Cancellation Decision.
Applicant's Granddaughter
The Applicant’s relationship with his granddaughter Z is limited given that she was born approximately one year prior to his incarceration (G13/66). In his Personal Circumstances Form the Applicant stated “[m]y mokopuna (Granddaughter)… I would spend every minute of every day with she is the apple of my eye. I look forward to being her no 1 babysitter upon release” (G10/53).
The granddaughter resides with her parents and her father currently works in Port Hedland. In his letter dated 24 November 2022, Z’s father stated that he was unable to comment on the Applicant’s rehabilitation and that “[i]t will be sad to see him deported back to New Zealand, for he would be unable to quality spend time and continue to build a relationship with his grandchildren, family…” (Exhibit A5). There are no submissions indicating any support the Applicant has provided to his granddaughter or might provide in the future.
Although, it can only have regard to the very limited evidence available, the Tribunal nevertheless finds that it would be in the best interests of the granddaughter Z that the Cancellation Decision be revoked, and gives this consideration moderate weight.
The Applicant’s great-nieces and nephews
The Respondent contends that while the Tribunal may find that the best interests of these children weighs in favour of revocation of the Cancellation Decision, it should only do so to a minimal extent (Exhibit R1, para 39).
The Applicant states in his Personal Circumstances Form (G10/53) that he would see his nephew’s children, N, MP, MAP and S at least two or three times a week, and that “it would be almost unthinkable for me to not be a part of these children’s lives. I’m the only home that has a swimming pool we spend many weekends, occasions celebrating with family around my pool the older kids have all learnt how to swim in my pool”.
There is no evidence from the children or their parents as to any parental or supervisory role exercised by the Applicant or the likely effect of continued separation from the Applicant. The Tribunal notes the Applicant’s periods of absence from these children because of his imprisonment and immigration detention.
The Respondent notes, and the Tribunal agrees, that there are no obvious impediments to the Applicant continuing to contact the children via electronic means (Exhibit R1, para 38.4).
There is no evidence before the Tribunal that might enliven the provisions of para 8.3(3) of Direction 90 requiring individual consideration of the interests of these great nieces and great nephews. Finally, the Tribunal tempers its consideration of the best interests of these four minor children having cognisance of the circumstances described at paragraph [70] above.
The Tribunal finds that it is in the best interests of the Applicant’s great nephews and great nieces that the cancellation of his visa be revoked, but in all the circumstances these interests can only be given limited weight.
Tribunal’s conclusion on the third primary consideration (para 8.3)
The Tribunal concludes that the best interests of minor children in Australia affected by this decision would be met by the revocation of the Cancellation Decision and the Applicant remaining in Australia. Taking into account all of the relevant considerations listed in para 8.3 of Direction 90 and having carefully and sympathetically balanced the evidence before it, the Tribunal finds that this consideration weighs moderately in favour of revocation of the Cancellation Decision.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectation of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.