Siueva v Minister for Home Affairs (Migration) - [2018] AATA 1079

Siueva and Minister for Home Affairs (Migration) [2018] AATA 1079 (27 April 2018)
Division:GENERAL DIVISION
File Number: 2018/0757
Re:Darcy Apisaloma Siueva
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Brigadier A G Warner, Member
Date:27 April 2018
Place:Perth

The decision under review is affirmed.
.......[sgd].................................................................
Brigadier A G Warner, Member
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations - protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations -strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958(Cth) -– s 499 – s 499(2A) – s 500(1)(ba) – s 501(3A) – s 501(6) –
s 501(6)(a) – s 501(7)(c) – s 501CA – s 501CA(3)(b) – s 501CA(4) – s 501CA(4)(a) –
s 501CA(4)(b)(ii)
CASES
Do and Minister for Immigration and Border Protection [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Hazelhurst and Minister for Immigration and Border Protection [2017] AATA 2711
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Waits and Minister for Immigration and Multicultural Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras 6.1, 6.2, 6.2(1), 6.3, 6.3(d), 7(1)(b), 8(1), 12.4(1), 13, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14, 14(1), 14.2(1), 14.3(1),14.5(1)
REASONS FOR DECISION
Brigadier A G Warner, Member
27 April 2018
INTRODUCTION

The Applicant seeks review of a decision of a delegate of the Respondent made on 7 February 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the mandatory cancellation of the Applicant’s visa (G3/32-46).
The application is made pursuant to s 500(1)(ba) of the Act.
The Minister of Home Affairs (the Minister) opposes the application. The Minister contends that the decision not to revoke the original mandatory cancellation of the Applicant’s visa was the correct and preferable decision.
The Applicant attended the hearing on 10 April 2018 and gave evidence. The Applicant was supported by his fiancée who also gave evidence. The Minister was represented by Mr Burgess of Sparke Helmore Lawyers.
THE NON-REVOCATION DECISION
The Applicant is a 42 year old citizen of New Zealand and last arrived in Australia as the holder of a Special Category Class TY Subclass 444 visa (the visa) on 18 April 2015. The Applicant’s movement details indicate that he first arrived in Australia on 31 January 2010 (G7/59-60).
The Applicant was convicted of “dealing with proceeds of crime money or property $100,000 or more” on 16 June 2016, and was sentenced to 3 years and 4 months imprisonment. On 14 July 2016, he was convicted of possession of stolen or unlawfully obtained property and received a further concurrent sentence of 4 months imprisonment (G4/47). .
The judge’s sentencing remarks on 16 June 2016 describe the circumstances of the offending. In particular, the Applicant was found to be in possession of $839,080 in cash that had been dug up in his front garden by a Telstra contractor on 28 April 2015. It was noted that the Applicant suspected that the money was from illegal activities and that he was asked to hold on to the money and receive and deliver sums of money to different locations in return for payment. The judge noted that the Applicant received payment for his part in the offending (G6/49-58).
On 15 June 2017, the Applicant was notified by letter that the Minister had cancelled his visa under s 501(3A) of the Act. 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 that the Applicant was currently 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 (G8/61-64).
On 7 February 2018, following a request for revocation of the cancellation decision, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision (G3/32-46).
The Applicant lodged an application to the Tribunal for review of the decision on 16 February 2018.
BACKGROUND
The Applicant was born in New Zealand in 1976 (G10/67).
The Applicant first arrived in Australia in 2010 (then 33 years of age) and has ordinarily resided here since then. He has travelled in and out of Australia a number of times as recorded on the Movement Details, and last arrived in Australia on 18 April 2015 (G7/59-60).
The Applicant has five children born in 1999, 2005, 2007 and 2009 (twins) respectively who reside in New Zealand (G11/75, 77).
The Applicant has been in a relationship with his Australian fiancée, Ms Tucci, since early 2010 (G11/74).
The Applicant’s New Zealand Police record shows a single minor traffic conviction in 1995 which resulted in a NZ$50 fine (G5/48).
The Applicant’s National Police Certificate indicates no offending history in Australia other than the convictions in the Perth District Court of Western Australia on 16 June 2016 and the Perth Magistrate’s Court on 14 July 2016, referred to in paragraph 6 above (G4/47).
After the discovery of the large amount of money (paragraph 7 above refers) and the arrest of the Applicant on 28 April 2015, police conducted a search of the Applicant’s address and motor vehicle. That search produced:
·a guitar case containing rolls of plastic cryo-vac bags, a box of latex gloves, a vacuum sealing machine, digital scales and a box of sandwich bags;
·two clip seal bags containing $29,550 and $11,000 respectively;
·seven packages of Testoviron (Testosterone – anabolic steroids) located in the refrigerator; and
·several electronic devices including Apple iPads, mobile phones and a “Phantom Secure” Blackberry phone (Exhibit R2, paras 28-30, 35-40 of the Statement of Detective Sergeant Surman).
The Applicant was incarcerated on 16 June 2016 and served his sentence in a minimum security facility before release to parole on 15 February 2018. On release the Applicant was taken into immigration detention and remains detained at Yongah Hill Immigration Detention Centre, Northam.
ISSUES
As it is clear, and not in dispute, that the Applicant does not pass the character test, the sole issue before the Tribunal, standing in the shoes of the Minister, is whether under s 501CA(4)(b)(ii) of the Act, “... there is another reason why the original decision should be revoked”.
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, North ACJ elaborated on how to approach this discretion (at [38]):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
The existence or otherwise of “another reason” should be established on the balance of probabilities.
EVIDENCE
The evidence before the Tribunal comprised:
·the “G Documents” (G1-G37, pp 1-233);
·email from Angelina Tucci dated 21 march 2018, attaching 8 documents (Exhibit A1);
·news article on Pedro Fernandez (Exhibit A2);
·two news articles on Jagdeep Singh (Exhibit A3);
·news article on Frank Mafddaferi (Exhibit A4);
·Putt Legal Submissions Regarding Revocation of Visa Cancellation dated 7 July 2017 (Exhibit A5);
·letter from Angelina Tucci dated 19 March 2018 (Exhibit A6);
·five images of the Applicant (Exhibit A7);
·a bundle of revocation documentation under cover of email from Angelina Tucci dated 30 March 2018 (Exhibit A8);
·the Respondent’s Statement of Facts, Issues and Contentions dated 15 March 2018 (Respondent’s SFIC) (Exhibit R1);
·a set of summonsed documents (58 pages) from WA Police, received by the Tribunal on 28 March 2018 (Exhibit R2);
·a set of summonsed documents (5 pages) from the Perth Magistrate’s Court received by the Tribunal on 15 March 2018 (Exhibit R3);
·the oral evidence of the Applicant; and
·the oral evidence of Ms Tucci.
LEGISLATIVE AND POLICY FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power, requiring that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
(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 sets out eleven sets of circumstances in which a person will be taken not to pass the character test. The first, set out at section 501(6)(a) of the Act, is that a person has a substantial criminal record. In the Applicant’s case, he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined at section 501(7)(c) of the Act. The Applicant does not contest that he does not pass the character test.
Section 501CA of the Act applies if the Minister has made a decision, known as the “original decision”, under section 501(3A) of the Act to cancel a visa that has previously been granted to a person. Section 501CA(4) of the Act provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
On 6 July 2017, responding to an invitation extended to him under section 501CA(3)(b) of the Act, the Applicant made representations through his then representative seeking revocation of the Minister’s decision. He therefore satisfied the requirement of section 501CA(4)(a) of the Act (G2/14, para 3).
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501CA of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591 per Katz J).
The Minister has made a direction under s 499 of the Act, namely “Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 65). Direction 65 applies to the visa cancellation decision affecting the Applicant.
Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following parts being relevant to the Applicant’s case:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
...
(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 full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of Direction 65 provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The “principles” referred to in the General Guidance to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 65 sets out how the discretion under s 501CA(4) of the Act to revoke the cancellation of a visa under s 501(3A) of the Act is to be exercised:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction 65 further states:
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4)Primary considerations should generally be given more weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction 65 (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Act.
PRIMARY CONSIDERATIONS
Pursuant to paragraph 13(2) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)the best interests of minor children in Australia; and
(iii)expectations of the Australian community.
Protection of the Australian Community
Paragraph 13.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above at para 30). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(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.
[Emphasis added]
Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct as follows:
13.1.1 The nature and seriousness of the conduct
(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 factors including:
(a)     The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)     The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)     The sentence imposed by the courts for a crime or crimes;
(d)     The frequency of the non-citizen’s offending and 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);
(h)     …

The written submission by the Applicant’s then representative, Mr Alisdair Putt, points to the following matters:
The offence, committed in 2015, prompting Siueva’s visa cancellation relates to a single count of dealing with money believed to be the proceeds of crime. Siueva maintains that the offence was done under threat of harm to his person and family. The weight of this intimidation as a motivating factor for Siueva’s conduct was accepted by the court at sentencing.
The seriousness of the offence is readily acknowledged and recognised by Siueva. However, the indictment can be characterised as a non-violent offence, without circumstances of aggravation, and as such it is at the lower end of seriousness as a representative risk to the Australian community (Exhibit A5, p2).
In referring to the Applicant’s minimal criminal record in New Zealand, Mr Putt stated:
His conviction in 1995, over 23 years ago, is about the most minor on the criminal calendar, as shown by the $50 fine imposed – I note that in New Zealand he would be regarded as having a clean criminal record under the Criminal records (Clean Slate) Act 2004 due to it being more than 7 years since the offending, and the minor nature of the offence (C22/124).
Before the Tribunal, Ms Tucci submitted that other non-citizens had committed more serious crimes than the Applicant and had their visas restored (refer to Exhibits A2, A3 and A4). The Tribunal notes Ms Tucci’s submission, the requirement to consider the facts of cases in the present matter, and takes Ms Tucci’s submissions no further.
The District Court sentencing judge accepted that apart from the offence for which the Applicant was convicted on 16 June 2016, the Applicant had been of good character. The Judge described the Applicant’s role as “…allowing those who generated their money through criminal activities to either launder the money or reinvest it in further criminal activities” (G6/56). In remarking on the seriousness of the Applicant’s offending, the Judge stated:
As I have mentioned general deterrence of this nature is a very significant factor. Finally, the mitigating and other personal factors that I’ve identified do not outweigh the factors indicating the severity of your offending (G6/56).
The Respondent submits at paragraph 26 of its SFIC that the Applicant’s offending should be seen as serious because:
(a) The seriousness of the offending is reflected in the three years and eight month combined prison sentences that was imposed by the sentencing judge (paragraph 13.1.1(1)(c)).
(b) Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved.
(c) The applicant’s conduct involved the movement of significant amounts of money which the applicant reasonably suspected to be the proceeds of crime. By facilitating the movement and concealment of this money, the applicant allowed those who generated their money through criminal activities to either launder the money or reinvest it in further criminal activities (see sentencing remarks at G6/56).
On the basis of the material before it, the Tribunal is satisfied that the Applicant’s offending, dealing with proceeds of crime money or property worth $100,000 or more is serious. In particular the Tribunal notes the comments of the District Court Judge in sentencing the Applicant and the length of the term of imprisonment imposed by the judge. The Tribunal concludes that the nature and seriousness of the Applicant’s conduct do not weigh in favour of revocation of the mandatory cancellation of his visa.
The risk to the Australian community should further offences be committed
Paragraph 13.1.2 of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to 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 to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)     The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)     The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In written submissions dated 7 July 2017, the Applicant’s then representative pointed to the following considerations in relation to risk:
Whilst serious, the applicant’s offence does not reflect an established pattern of behaviour. Significantly, Siueva has never committed any other crimes of any nature and was previously a man of good character. This was a wholly isolated episode which he deeply regrets. He has exhibited sincere remorse for his conduct and adamantly contends that there is no risk of his re-offending. At sentencing, Gething DCJ accepted Siueva’s contrition for his conduct:
I…take into account the extent to which you’ve shown contrition for your offending…I accept that you appear to have a good understanding of the seriousness of your offending, that you’ve displayed a high level of insight into your behaviour and that you accept full responsibility for your actions. On this basis, I accept that you are genuinely remorseful for your actions.
It is pertinent to a consideration of any risk Siueva represents to the Australian community that his crime was neither sexual or violent in nature. Whilst the nature of his crime is subject to normative considerations of public deterrence the court recognized that Siueva’s involvement was limited in scope and application with no parallel offences of tax fraud or drug dealing.
Upon apprehension, Siueva cooperated fully with police investigations and plead guilty at the earliest reasonable opportunity. In light of the available penalties for the offence, the applicant’s sentence, including eligibility for parole, is at the lower end of the scale for convictions of this class, reflecting his limited involvement in the activity.
A further safeguard against reoffending stipulated at sentencing is that upon his release on parole, Siueva would be subject to supervision by a Community Corrections officer and completion of community service. Siueva readily accepts these implementations and is eager to maintain their integrity as he rejoins the Australian community upon release.
Siueva has not been previously warned of likely adverse immigration consequences, and is genuinely dismayed at the prospect of being permanently separated from his fiancée. He understands that his relationship with his partner depends on his full rehabilitation and ensuring no further criminal convictions, as this would inevitably lead to his permanent removal from Australia. He is unwilling and unlikely to take any action which would alienate him from his fiancée (Exhibit A5, pp 2-3).
In a letter to the Minister dated 19 March 2018, Ms Tucci states in part that “There is no chance that he will reoffend as he doesn’t even know or see those kinds of people and has definitely paid the price for his mistake” (Exhibit A6, p3) and that “I can promise you he is not a risk to the Australian community and I will personally take full responsibility for this” (Exhibit A6, p 5).
In relation to the risk to the Australian community, the Respondent’s SFIC contends that (at Exhibit R1, paras 28-32):
·the Applicant’s conduct and his involvement in organised crime was so serious that any risk that it could be repeated poses an unacceptable risk to the Australian community (see paragraph 6.3(d) of Direction 65);
·whilst the Applicant has provided statements which claim that he has attended rehabilitation courses and is now reformed, little weight should be placed on these submissions where his rehabilitation has not been successful to date and has not recently been tested in the community environment;
·despite the Applicant’s contentions that he has a supportive partner and family who would assist in his rehabilitation if released into the community, limited weight should be given to this fact in circumstances where such family support was provided to the Applicant prior to his imprisonment and failed to prevent him from offending; and
·on the evidence presently available, it could not be said that there is no risk or only a low risk that the Applicant will re-offend.
In assessing all material relevant to the consideration of risk, the Tribunal particularly notes the following:
·despite the Applicant maintaining that the offence was committed under threat to his person and family, and the court accepting those circumstances, the Applicant made no mention of this in his oral evidence. Rather, he told the Tribunal that he did not think the money and his involvement had overly criminal connotations and that he just wanted a good wedding for his fiancée. The Tribunal finds that the behaviour of the Applicant and his evidence at the hearing show that he has an underlying disregard for the law. The delegate of the Minister noted, when reviewing the cancellation of the Applicant’s visa, that in a letter received by the Department on 12 January 2018, the Applicant states that he decided to accept “monies out of greed, and a need to make my fiancée happy with a wedding ring and a wedding” (G2/19);
·although the various submissions on the Applicant’s behalf describe a single offence, the evidence is that the criminal activity occurred during a period of five to six months, involved multiple contacts with a sophisticated network and at least three transactions. The District Court sentencing judge remarked that the Applicant was “…obviously highly trusted by those in control of the operation” (G6/56);
·before the Tribunal, the Applicant said that the first consignment of money he received was $12,000 which he did not consider criminally significant. He thought it might have been derived from drugs or the proceeds of white collar crime but did not question its origins. He said that he was paid $1,000 for the first transaction and that the second consignment was double the amount of the first;
·the Applicant told the Tribunal that when he accepted the packages of anabolic steroids (see paragraph 17 above) and stored them in the refrigerator for a significant period, he knew that they were illegal;
·the Applicant completed voluntary interventions whilst incarcerated at Wooroloo Prison Farm and is to be commended for doing so. However, any mitigation of the risk of reoffending due to the participation in these interventions has not been tested in the community;
·Ms Tucci’s passionate intention to support the Applicant and assist in his rehabilitation should he remain in Australia is abundantly clear. At the time of his offending the Applicant and Ms Tucci had been in a relationship for five years, and were engaged and residing together at the address where the money was found in the garden and illegal steroids were stored in the refrigerator. The Applicant’s relationship with his fiancée and acceptance by her family failed to prevent his criminal activity; and
·Ms Tucci was interviewed by WA Police on 28 April 2015 in relation to the money found in the garden. The interview log sheet records the interview in part as “Says SIUEVA has “tons” of money after working in the mines. Says that SIUEVA may have $200-300,000 saved up. Says that SIUEVA hides the money because of child support. Says that SIUEVA has not stored money previously” (Exhibit R2, p55). Before the Tribunal, Ms Tucci said that she and the Applicant managed their finances separately and independently.
As set out in paragraph 48 above the Tribunal has considered the circumstances surrounding the offences for which the Applicant was convicted, including his apparent motivation for committing these crimes, his apparent disregard for the law and the circumstances that the Applicant identifies as indicating that he will not reoffend. The Tribunal is of the view that the risk of future offending by the Applicant is unacceptable. This factor weighs against revocation of the mandatory cancellation of the Applicant’s visa.
The consideration of the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct is the second of the two elements the Tribunal must have regard to under the primary consideration of the protection of the Australian community. In the present matter, the Tribunal is reasonably satisfied that the possibility of future offending by the Applicant together with the nature and seriousness of the offending which gave rise to the mandatory cancellation of his visa, lead inexorably to a conclusion that the primary consideration of protection of the Australian community weighs against revocation of the cancellation of the Applicant’s visa.
Best interests of minor children in Australia
The Applicant’s minor children reside in New Zealand (see paragraph 13 above). The Applicant does not make any submissions regarding any minor children in Australia who would be affected by a decision to cancel his visa.
Expectations of the Australian community
The third primary consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction 65 states:
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.
In considering the expectations of the Australian community, the Tribunal is guided by previous Tribunal decisions. Deputy President McCabe’s comments in Do and Minister for Immigration and Border Protection [2016] AATA 390 states at [23]:
A decision-maker is, to some extent, required to guess at the community’s expectations... As I begin my deliberations, I assume the Australian community would be fair-minded and mature... The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
The Tribunal in Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [6] (see also: Hazelhurst and Minister for Immigration and Border Protection [2017] AATA 2711 at paras 111 and 112) stated that:
… the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501…
The Tribunal is cognisant of the representations made by the Applicant’s prior representative that:
·the community would be conscious of the time the Applicant has been living in Australia;
·the community is likely to be forgiving of the Applicant because he has expressed deep remorse and has an extremely low chance of reoffending; and
·the Applicant is fully invested in remaining with his Australian fiancée and has plans to marry and start a family in Australia (Exhibit A5, p 4).
The District Court Judge’s sentencing remarks on 16 June 2016 describe the serious and protracted nature of the Applicant’s offending, and state in part:
First, only a term of imprisonment would adequately punish you for the offence. Your offending was right in the middle of the range of offending addressed by section 400(1).
This is for a number of reasons. The money found, nearly $840,000, is at the upper end of the range dealt by this subject. Had it been over $1 million, the maximum penalty would have gone up to 25 years’ imprisonment.
The cascading structure of the relevant provisions shows that the amount of money involved is an important factor in determining seriousness. Second, you were involved in a sophisticated criminal operation involving multiple anonymous individuals, coded messages and large amounts of cash, though I accept that you were not involved in planning the operation.
Next, you were obviously highly trusted by those in control of the operation. You were involved in this enterprise for a period of around five to six months and participated in at least three collections (G6/55-56).
The Respondent relevantly submits that: “The Australian community would expect that the applicant, being a visa holder who played a significant part in organised crime operations in Australia would not have his visa reinstated” (Exhibit R1, para 35).
Given the serious nature of the Applicant’s offending, and having careful regard to the relevant evidence, I conclude that the Australian community would not expect the Applicant to hold a visa. The Australian community regards dealing in the proceeds of crime on a large scale as a serious offence. As mentioned in the District Court Judge’s sentencing remarks the Applicant’s role in receiving, hiding and delivering cash was integral in allowing those who generated the money through criminal activities to continue with their operation. Community expectations would be that anyone so intimately involved in drug dealing activities, or any nefarious activities that would necessitate the hiding of such large amounts of money, would not be granted a visa. The Applicant has betrayed the trust of the community and the expectation would be the non-revocation of the cancellation of his visa. It follows that this consideration weighs against revocation of the non-cancellation decision.
OTHER CONSIDERATIONS
There are other considerations in Part C, paragraph 14 of Direction 65 which must be taken into account (where relevant) in deciding whether to revoke the mandatory cancellation. These considerations include:
(a)international non-refoulement obligations;
(b)strength, nature and duration of ties to Australia;
(c)impact on Australian business interests;
(d)impact on victims; and
(e)extent of impediments if removed from Australia.
International non-refoulement obligations
This consideration does not arise in these proceedings.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of Direction 65 requires the Tribunal to consider the Applicant’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

The Applicant has lived in Australia a little more than eight years and has been in prison and immigration detention since his sentencing in June 2016.
The evidence, and particularly the submitted and oral evidence of Ms Tucci, supports the submission of the Applicant’s prior representative that:
Prior to imprisonment he was a gainfully employed member of his community who participated widely in many facets of the Australian lifestyle. He is in a committed, loving relationship and is a valued member of Ms Tucci’s extended family. He is a positive male role model to his fiancees’ (sic) adult son (Exhibit A5, p 4).
The evidence is also that while incarcerated at Wooroloo Prison Farm he contributed positively through employment in prison reception, engagement in voluntary intervention programmes and vocational education, and assisting fellow prisoners.
The Tribunal’s consideration of the strength, nature and duration of ties must comprehend the relevant circumstances of the Applicant’s offending. The sentencing judge remarked (see paragraph 56 above) that the offending occurred during a period of five to six months, involved contact with multiple individuals, and that the Applicant was highly trusted by those involved in the sophisticated criminal operation. Before the Tribunal, the Applicant said that his involvement had followed contact with a previous acquaintance and his subsequent telephone call to that individual. The Tribunal is of the view that these circumstances militate against great weight being given to this other consideration.
The Respondent notes that the Applicant has resided in Australia since 2010 and has an Australian citizen partner, and that this consideration weighs in favour of revocation. However, the Respondent contends “…that as an “other” consideration, it generally carries less weight than the “primary” considerations which in this matter, strongly favour cancellation” (Exhibit R1, paras 38-39). Having carefully considered the relevant evidence and circumstances, the Tribunal agrees with the Respondent.
Impact on Australian business interests
Paragraph 14.3(1) of Direction 65 provides guidance that “…an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
In the statement of reasons for the non-revocation decision, the Delegate noted the Applicant’s employment in Australia, the potential for future employment and his plans to develop a small business with Ms Tucci (G2/21). However, there is no evidence of business issues of the kind contemplated in paragraph 14.3(1) of Direction 65 that would weigh in favour of revocation of the visa cancellation decision.
Impact on victims
Although the District Court sentencing Judge described the Applicant’s role in the offending as “…allowing those who generated their money through criminal activities to either launder the money or reinvest it in further criminal activities” (G6/56), there is no direct evidence before the Tribunal regarding potential victims of the Applicant’s criminal behaviour. The Tribunal can go no further with this consideration.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 65 requires the Tribunal to consider the extent of any impediments if an applicant is removed from Australia as follows:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Tribunal’s consideration of the extent of impediments if the Applicant is removed from Australia, although de novo, is consistent with that of the Delegate as detailed in the statement of reasons not to revoke the cancellation of the Applicant’s visa (G2/24, paras 86-93). Although the Tribunal has careful regard to the written and oral submissions by Ms Tucci regarding the impact on her and her relationship with the Applicant, should he be removed to New Zealand, the focus of this consideration must be on impediments to the Applicant.
The Applicant, now 42 years old, lived in New Zealand for almost 34 years. His mother, sister, brother and five children live in New Zealand.
The Tribunal considers that Australia and New Zealand are broadly analogous in terms of language, heritage, culture and the provision of social, health and other public services. There is insufficient evidence to support a conclusion that the extent of impediments on the Applicant’s removal from Australia weigh in favour of revocation of the non-revocation decision.
CONCLUSION
Having received a sentence of a term of imprisonment in excess of 12 months, the Applicant has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Act. Further, as the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Act. His visa was mandatorily cancelled on 15 June 2017.
In determining whether there is any reason why the decision to cancel the Applicant’s visa should be revoked, the Tribunal has attached weight to the strength, nature and duration of the Applicant’s ties to Australia. The Tribunal takes into account the significant impact that the Applicant’s removal to New Zealand would likely have on his fiancée and their future plans, noting Ms Tucci’s evidence that she would not be able to leave Australia due to business and family reasons. However, these considerations do not, in the Tribunal’s opinion, outweigh the primary considerations of the protection of the Australian community and the expectations of that community, both of which weigh in favour of the non-revocation of the cancellation of the visa.
For the reasons outlined above, the Tribunal finds that the factors in support of revocation presented by and on behalf of the Applicant do not singularly or cumulatively outweigh the primary considerations and factors weighing against the exercise of the discretion under s 501CA(4) of the Act to revoke the Applicant’s mandatory visa cancellation.
DECISION
For the reasons outlined above, the decision under review is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, Member

....[sgd].............................................................
Associate
Dated: 27 April 2018

Date of hearing: 10 April 2018

Applicant: In person

Representative for the Respondent: Mr Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	10 April 2018
Applicant:	In person
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers