Robertson and Minister for Home Affairs (Migration)

[2019] AATA 164

Robertson and Minister for Home Affairs (Migration) [2019] AATA 164 (18 February 2019)

Division:GENERAL DIVISION

File Number:           2018/7094

Re:Scott J Robertson

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Senior Member M Griffin QC


Date:18 February 2019

Place:Sydney

The decision of the Respondent made on 23 November 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB (Subclass 155) Resident Return visa under s 501(3A) of the Migration Act 1958, is set aside.

In substitution, the decision to cancel the Applicant’s Class BB (Subclass 155) Resident Return visa, is revoked.

............................[sgd]............................

Senior Member M Griffin QC

Catchwords

MIGRATION – Revocation of visa cancellation – failure to pass the character test – whether there is another reason why cancellation of the Applicant’s Class BB (Subclass 155) Resident Return visa should be revoked – Ministerial Direction No. 65 applied – primary considerations – protection of Australian community from criminal or other serious conduct –  best interests of minor children in Australia –  expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside

Legislation

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

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 paras 6.2, 6.3, 13.1, 13.1.1, 13.1.2, 13.2, 14.1, 14.2, 14.4, 14.5,

REASONS FOR DECISION

Senior Member M Griffin QC

18 February 2019

introduction

1. 1. This is an application for review of a decision of a delegate of the respondent, made on 23 November 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) and notified to the Applicant on 26 November 2018, refusing to revoke an earlier decision made on 2 November 2017 pursuant to the requirements of s 501(3A) of the Act to cancel the Applicant’s Class BB (Subclass 155) Resident Return visa (the visa).

   Background

2. 2.        The Applicant was born on 12 December 1983 in Scotland, and is a British national. He arrived in Australia, with his mother and stepfather, on 4 July 1987. He left Australia since that time only on one occasion (in 1995-1996), for a period of less than 2 months.

3. 3.        The Applicant has a daughter, born in 2012, from a relationship with Ms Belinda Fulham. Both Ms Fulham and the Applicant’s daughter are Australian citizens.

4. 4.        The Applicant’s mother and step-father also continue to live in Australia. It is said that the Applicant has no family or none that he knows, in Scotland (or, it is presumed, elsewhere in the UK).

5. 5.        The Applicant’s first conviction, for a property offence, dates from 2003 when he was 20 years old. His more recent convictions, for a broad range of offences including assault, custody of knife, drug, domestic violence, public nuisance, dishonesty, driving and failure to appear offences, commenced in 2011, and are detailed in the National Police Certificate.

6. 6.        Most relevantly:

   a.(a)       On 22 August 2016 the Applicant was convicted of assault occasioning actual bodily harm (dv) and sentenced to imprisonment for a period of 16 months (with a non-parole period of 9 months)

   b.(b)       On the same day, he was re-sentenced for periods of 6 and 8 months imprisonment for re-offending during the terms of bonds previously imposed

   c.(c)       On 17 August 2017, he was convicted of common assault and sentenced to a period of 12 months imprisonment (with a non-parole period of 6 months) for common assault

   d.(d)       On the same day was convicted of 2 counts of custody of knife in a public place and sentenced to periods of 7 and 4 months, respectively.

e. 7. On 2 November 2017, the Applicant’s visa was cancelled by a delegate of the Minister pursuant to s 501(3A) of the Act.

f.       8.        On or about 20 November 2017, the Applicant requested in writing revocation of his mandatory visa cancellation.

g.       9.        On his release on parole, the Applicant was taken into immigration detention. He is currently detained at the Villawood Immigration Detention Centre.

h. 10. On 23 November 2018, the delegate declined to revoke the mandatory cancellation decision under s 501CA(4) of the Act and the Applicant was notified of the delegate’s decision on 26 November 2018.

1. 11.      On 12 November 2018, the Applicant applied to the Administrative Appeals Tribunal for review of the delegate’s decision.

j. 12. On 5 December 2016, the Applicant made representations to the Respondent as to why the cancellation decision should be revoked, satisfying s 501CA(4)(a) of the Act.

6.       ISSUES

1. 13. The central issue in this review is whether the Tribunal should exercise its discretion pursuant to s 501CA(4) of the Act to revoke the cancellation decision dated 2 November 2017. The Tribunal may revoke the original decision if the Tribunal is satisfied:

   a.(a) That the Applicant passes the character test as defined by section 501 of the Act; or

   a.(b)       There is another reason why the original decision should be revoked
(s 501CA(4)(b)).

   Relevant legislation and policy

a. 14. Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65), the relevant paragraphs of which are set out below, describes the framework within which the Tribunal‘s discretion is to be exercised in this case.

b. 15. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

2.       Subsection 501CA(4) provides that:

4.4 The Minister may revoke the original decision if:

a.(a) the person makes representations in accordance with the invitation;

5.   and

a.(b) the Minister is satisfied:

i.      (i)     that the person passes the character test (as defined by section 501); or

ii.     (ii)    that there is another reason why the original decision should be revoked.

1. 16.      Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

2. 17. Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

3. 18. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction No 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:

   a.(a)       The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (para 6.2(1));

   a.(b)       The Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (para 6.3(2));

   b.(c)       A non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (para 6.3(3));

   c.(d)       In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa (para 6.3(4));

   d.(e)       While Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (para 6.3(5)); and

   e.(f)        The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused (para 6.3(7)).

f.       19.      Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

g.       20.      Pursuant to Part C of Direction 65, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

h.       21.      The three primary considerations are:

a.(a)       Protection of the Australian community from criminal or other serious conduct;

a.(b)       Best interests of minor children in Australia; and

b.(c)       Expectations of the Australian community.

2.       Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct

1. 22.      Paragraph 13.1 of Direction 65 provides:

   4.1 When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

   5.2 Decision-makers should also give consideration to:

   a.(a) The nature and seriousness of the non-citizen’s conduct to date; and

   b.(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

a.       23.      The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

The nature and seriousness of the conduct

a.       24.      Paragraph 13.1.1 of Direction 65 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a.(a)       The principle that violent and/or sexual crimes are viewed very seriously (para 13.1.1(1)(a));

a.(b)       The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious (para 13.1.1(1)(b));

b.(c)       The sentence imposed by the courts for a crime or crimes (para 13.1.1.(1)(c));

c.(d)       The frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (para 13.1.1.(1)(d));

d.(e)       The cumulative effect of repeated offending (para 13.1.1.(1)(e));

e.(f)        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 (para 13.1.1.(1)(g)); and

f.(g)       Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious (para 13.1.1.(1)(h)).

The risk to the Australian community

1.       Paragraph 13.1.2 of Direction 65 states that decision makers should have regard to the following:

a.(a)       The principle 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 repeated, is so serious that any risk that it may be repeated is unacceptable (para 13.1.2(1));

a.(b)       The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct (para 13.1.2(2)(a)); and

b.(c)       The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (para 13.1.2(2)(b)).

2.       Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

1. 25.      The considerations at paragraph 13.2 of Direction 65 include:

   a.(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) (para 13.2(4)(a));

   a.(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 (para 13.2(4)(b));

   b.(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 (para 13.2(4)(c));

   c.(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 (para 13.2(4)(d));

   d.(e)       Whether there are other persons who already fulfil a parental role in relation to the child (para 13.2(4)(e));

   e.(f)        Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (para 13.2(4)(f));

   f.(g)       Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect (para 13.2(4)(g)); and

   g.(h)       Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct (para 13.2(4)(h)).

   2.       Primary Consideration 3 – Expectations of the Australian community

2. 26.      Paragraph 13.3 of Direction 65 provides:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.

3. 27.      The principles to be applied, as set out in paragraph 6.3 of Direction 65, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes (para 6.3(2) of Direction 65).

   Other Considerations

   International non-refoulement obligations

4. 28.      The considerations at paragraph 14.1 of Direction 65 include (but are not limited to):

   a.(a)       A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations (para 14.1(1));

   a.(b)       The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa (para 14.1(2));

   b.(c) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled) (para 14.1(3));

   c.(d)       Where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked (para 14.1(4));

   d.(e)       Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated (para 14.1(6)).

   Strength, nature and duration of ties

a.       29.      The considerations at paragraph 14.2 include:

a.(a)       How long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community (para 14.2(1)(a));

a.(b)       The strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family (para 14.2(1)(b)).

Impact on Australian business interests

a.       30.      Direction 65 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (para 14.3(1)).

Impact on victims

a.       31.      Paragraph 14.4 of Direction 65 provides:

Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness (para 14.4(1)).

Extent of impediments if removed

a.       32.      The extent of impediments if removed requires consideration of the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support (para 14.5(1)).

DISCUSSION

The Character Test

a.       33.      The Applicant does not satisfy the ‘character test’. The question for the Tribunal is whether it is satisfied that there exists another reason for revoking the cancellation decision.

2.       Protection of the Australian community (past conduct and future risk)

1. 34.      The first primary consideration consists of 2 matters: (i) the nature and seriousness of the Applicant’s conduct, and (ii) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

2. 35.      The Respondent submitted that without seeking to overstate the seriousness of the Applicant’s offending, the frequency and cumulative effect of his offences since 2011, many of which originally merited a bond only, has been reflected by the custodial sentences he ultimately received.

3. 36.      The Respondent submitted that the Applicant’s offending appears to be the result, or closely related to, his substance abuse.

4. 37.      The offences of domestic violence are objectively serious. They were, however, committed against one person, the witness and former partner of the Applicant. They are now both reconciled and no longer in a relationship. The Tribunal accepts that they now co-operate amicably for the benefit of their child. Further, the Tribunal accepts that the domestic violence, although serious, occurred on three occasions encompassing four offences.

5. 38.      Domestic violence is recognised and regarded by society today as a serious matter and must never be condoned. However, the Tribunal is of the view that the offences were situational rather than being broadly or community based. The Tribunal is satisfied there is sufficient evidence to support the view that the Applicant, relinquishing his relationship with his former partner, is unlikely to commit acts of this kind in the future.

6. 39.      This is supported by the opinion of the psychologist Associate Professor Freeman whose opinion the Tribunal concludes was thorough, thoughtful, balanced and realistic concerning the Applicant. He opined that not only did the Applicant appear to have rehabilitated but more importantly, in the Tribunal’s opinion, the threat of future deportation was an impressive factor that would act as a deterrent to any future possible criminal behaviour.

7. 40.      The Tribunal takes the view independent of the Applicant’s evidence that the Applicant appreciates this “threat” of deportation is a deterrent and his behaviour will be suitably modified by it.

8. 41.      As to the Applicant’s other offending, the assault on the security office, the Tribunal accepts, was no more than a push and the Tribunal regards all other offending (as, for example, stealing a chicken for food when hungry) as de minimus.

9. 42.      It is necessary to have careful regard and analyse the Applicant’s criminal history. Overall, it is modest, in the Tribunal’s view. It cannot be said that it is wide-ranging against the Australian community at large. The Tribunal considers that overall, the Applicant is at minimal risk of re-offending in any criminal dimension be it assault, drugs or otherwise.

10. 43.      Consideration 1 favours revocation.

    Best interests of minor children in Australia

11. 44.      The Applicant has an Australian citizen daughter, aged 6 years.

12. 45.      As a general proposition, it is in the best interests of the Applicant’s minor child that he be allowed to remain in Australia.

13. 46.      Although there have been periods of time when the Applicant has been incarcerated (and is now in immigration detention), nonetheless, on the evidence, the Tribunal finds that prior to the Applicant’s last incarceration, he had established a genuine and deep relationship with his daughter which continues to endure at the time of the hearing. The Tribunal accepts the child’s mother’s evidence in this regard.

14. 47.      It goes without saying that every child has a right to know each parent. In this case, removal of the Applicant’s visa would do irreparable damage to the father/daughter relationship, especially in a child of such tender years. The Tribunal takes into account that some rather tenuous relationship may be possible and able to be established should the Applicant be removed to Scotland. This is, however, far from the preferable course.

15. 48.      This consideration, therefore, weighs heavily in favour of revocation. The Tribunal has formed this view taking into account the low risk of recidivism and the likelihood of the Applicant’s trouble-free future.

    Expectations of the Australian Community

16. 49.      An issue has arisen in this hearing as to the operation of this consideration. The expectations of the Australian community are often framed by the Respondent in terms of the statements of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and in particular, on the basis of phraseology in para [76] suggestive that this consideration is fundamentally one which will always be taken into account against the Applicant’s interests and should be weighed against the Applicant. The judgement proceeds at para [76] “ … 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”.

    [76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [77] 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 (see Uelese [2016] FCA 348; 248 FCR 296 at [64]- [66]).

17. 50.      It cannot, however, be supposed that the learned Justice meant anything so strict or absolute.

18. 51.      The meaning and consequently the operation of this consideration is to be understood by analysis of the language of Direction 65 itself. It is tolerably clear according to its language that it, like all other considerations under Direction 65, requires an evaluation of factors by the Tribunal. This view is supported by the language of paragraph 6.3 Principles (2) – (7); paragraph 7 – ‘How to exercise the discretion’ and paragraph 8 – ‘Taking the relevant considerations into account’.

19. 52.      In fact, contrary to the “deeming provision” analysis in YNQY (at para [76]) are statements of the application of the discretion referred to in paragraph 8(3) of the Direction “both primary and other considerations may weigh in favour of or against … whether or not to revoke a mandatory cancellation of a visa”. This is, together with the “expectation” language of paragraphs 6.3(2), (3), (5), (7), positive recognition that Consideration 3 will not necessarily be determined to weigh against an Applicant’s interests.

20. 53.      The use of the terminology “primary” and “other considerations” is in fact, an expression of the exercise of a process of evaluation which in its turn becomes, according to the regime dictated by Direction 65, an exercise in discretion as to whether there is “another reason” not to revoke the visa.

21. 54.      The notion of “considerations” in Direction 65, both “primary” and “other” logically have, according to their construction and intention, the requirement that an assessment is undertaken and an analysis made of all relevant factors; and upon that undertaking, by appropriate synthesis, a resulting conclusion as to the weight to be given to this consideration in the overall assessment of all considerations for the purpose of the proper exercise of discretion by the Tribunal.

22. 55.      It should be noted that in YNQY, the learned Justice’s ultimate disposition of the appeal did not depend upon the statements made regarding Consideration 3 and such statements were not germane to the reasoning.

23. 56.      Having regard to the structure of the Direction, apart from the fact that it appears to operate as a “consideration” rather than a deeming provision, it is in reality, a prima-facie expectation which may be displaced by the assessment of factors including those considerations pertinent to Primary Consideration 1. So much is evident from a reading of the Direction itself. An assessment of those multiple factors will inform and may displace this prima-facie aspect of Primary Consideration 3.

24. 57.      Whether those “community expectations” referred to by the learned Justice are an articulation of the views of the executive government expressed through the prism of the community or not, there is absolutely no warrant for a refusal by the Tribunal on that basis to perform its mandated function, that is to say, an assessment of all relevant factors under this consideration.

25. 58.      Were Consideration 3 not to operate in this way, then Consideration 3 itself would have no logical place within the collection of considerations which together comprise Direction 65.

26. 59.      On the evidence, the Tribunal concludes that, even taking into account the tolerance that should be afforded a non-citizen who has resided in Australia for many years, the domestic violence offences weigh against revocation in this consideration.

    Other considerations

    International non-refoulement obligations

27. 60.      A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

28. 61.      There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

29. 62.      This consideration does not appear to be relevant to the present case.

    Strength, nature and duration of ties

30. 63.      The Applicant moved to Australia with his family when he was a young child, and has not lived elsewhere. He has close family ties to Australia; that is, his immediate family lives in Australia and they would experience emotional and perhaps practical hardship if the Applicant had to depart.

31. 64.      Ms Fulham may experience some emotional and financial hardship should the Applicant be removed. The Applicant would have opportunity to work and therefore provide some financial support for the child should the visa not be revoked.

32. 65.      The Applicant has worked and paid taxes in Australia, apparently primarily in various labouring roles.

33. 66.      This consideration weighs in favour of revocation.

    Impact on Australian business interests

34. 67.      This consideration does not appear to be relevant, as there is no information to suggest the Applicant had any link to major project or the delivery of an important service in Australia.

    Impact on victims

35. 68.      One of the Applicant’s victims was Ms Fulham, who nevertheless continues to support the Applicant’s attempts to remain in Australia.

    Extent of impediments if removed

36. 69.      The Applicant has lived most of his life in Australia, and it may be assumed he has familiarity with the culture of Scotland and the UK in general.

37. 70.      The Applicant’s prospects of finding employment in the UK would be comparable to those in Australia, as would be his ability to obtain medical treatment if necessary or appropriate. Having lived most of his life in Australia, the Tribunal concludes this consideration weighs somewhat in favour of revocation.

    Any other considerations

38. 71.      There are no other considerations that the Tribunal considers relevant.

    Conclusion

39. 72.      The Tribunal has concluded that the Applicant is at minimal risk of re-offending. Therefore, specifically, he is not an unacceptable risk of re-offending. Taking all other relevant factors and each relevant consideration into account, including the Tribunal’s assessment that Consideration 3 weighs against the Applicant, the Tribunal ultimately concludes that Consideration 2, the best interests of the minor child, in this particular case the Applicant’s daughter, weighs most heavily in favour in these proceedings to revoke the revocation of the Applicant’s visa. The weight accorded to Consideration 2, together with the length of time the Applicant has lived in Australia; outweigh all other considerations to the contrary.

    decision

40. 73. The decision of the Respondent made on 23 November 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB (Subclass 155) Resident Return visa under s 501(3A) of the Migration Act 1958, is set aside.

41. 74.      In substitution, the decision to cancel the Applicant’s Class BB (Subclass 155) Resident Return visa, is revoked.

3.       75.      

4.       76.      I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

.............................[sgd].............................

Associate

Dated: 18 February 2019

Date of hearing:

Applicant: 

6 February 2019

In person

Solicitor for the Applicant:

Mr T Mwilambwe, Go To Court Lawyers

Counsel for the  Respondent:

Mr A Markus SC, Australian Government Solicitor

1.