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

Spacho and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 83 (3 February 2023)
Division:GENERAL DIVISION
File Number: 2022/9442
Re:Nikola Spacho
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

Decision
Tribunal:A G Melick AO SC, Deputy President
Date:3 February 2023
Place:Melbourne

The decision under review is set aside and in substitution the Tribunal decides that the mandatory cancellation of the Applicant’s visa is revoked.
.....[sgn]...................................................................
A G Melick AO SC, Deputy President
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a WC Subclass 030 Bridging C - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – Cultivate a commercial quantity of cannabis – decision under review set aside and substituted.
Legislation
Migration Act 1958 (Cth)
Cases
Buadromo v Minister for Home Affairs [2018] FCAFC 151
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
A G Melick AO SC, Deputy President
3 February 2023
INTRODUCTION AND BACKGROUND

The Applicant is a 51-year-old man of Albanian Citizenship. Mr Spacho was born in Albania where he worked in a factory before competing military training for eighteen months. Mr Spacho moved to Greece with his family in 1997.
In the early 1990’s Mr Spacho established a carpet supply and installation business. He then worked for a transport company delivering furniture items into Albania for 14 years. Mr Spacho resided in Greece between 1997 and 2016 and worked as a driver for a logistics company and at a funeral parlour.
The Applicant came to Australia for a holiday in 2016 where he met his future wife, Mrs Silvana Spacho. He decided to stay in Australia to be with her and they married in 2017.
Mr Spacho was in Australia on a WC Subclass 030 Bridging C Visa while awaiting an outcome in a partner visa application.
On 15 September 2021 the Applicant was convicted in the Melbourne County Court of the offence of ‘cultivate narcotic plant commercial quantity-cannabis’. The cannabis was being hydroponically cultivated in a suburban building.
On 21 June 2022, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full time custodial sentence.[1] On 15 July 2022, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[2] On 11 November 2022, the Respondent decided not to revoke the cancellation.[3]
[1] G-documents, 39.
[2] Ibid 48.
[3] Ibid 16.
The Applicant subsequently lodged an application for review in this Tribunal on 18 November 2022.[4] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[4] Ibid 1.
The matter was heard on 18 and 19 of January 2023 with the Applicant present but unrepresented. A qualified Greek interpreter was also present throughout. Mr Spacho had a support person available by Microsoft Teams. The Applicant gave evidence as did his wife, both of whom were cross-examined.
No additional written evidence was provided by the Applicant and he relied upon materials contained in the G-documents.
The Tribunal was greatly assisted by the solicitor Ms Siran Nyabally, who appeared for the Respondent and presented her case in a very fair and helpful manner.
EVIDENCE
The Applicant adopted the matters raised in counsel’s outline of submissions upon sentencing,[5] a summary of which is as follows:
[5] Exhibit 2.
The Applicant was born in Albania in July 1971 and moved to Greece with his family in 1997. He grew up with both parents and his younger brother, and arrived in Australia in 2016 where we met his current wife whom he married in 2017. He lives with her and her 16-year-old son from a previous relationship “I”.
He completed most of his schooling in Albania but left early to enter the workforce. He then spent eighteen months in the military. His posting was on an island away from his family and he suffered some mental health implications due to the isolation.
In the early 1990s he operated his own carpet supply and installation business for approximately five years and then worked in logistics delivering furniture into Albania for about fourteen years. He was also employed by the bishop at his local church.
In 1997 he moved from Albania to Greece due to the political unrest. After moving to Greece he worked in funeral homes.
He met his first wife in Albania in 1993 but they separated after moving to Greece. They had a daughter, Maria, who is twenty-four years old. She is a Greek citizen and still resides in Greece. She is undergoing work experience as a secretary and studying to be a nurse. She talks to the Applicant every day.
His mother is still alive and lives in Korca. He has a married brother who lives in the same city.
His wife purchased a café business just before the COVID-19 outbreak, which was their only source of income. The Applicant could not work in the café because of his visa restrictions so he looked after the household. The business was not profitable as it was affected by COVID-19 in the same manner as most such businesses. The failure of the business and his court proceedings weighed heavily on the entire family.
The Applicant speaks Albanian, Greek, Italian, Romani and limited English. He communicates with his wife predominantly in Italian whilst he is learning English.
Mr Spacho admitted to attending the house where the cannabis crop was growing on several occasions in order to do chores and work around the house. This occasionally included attending to parts of the set up for the cannabis crop. He was not the person who set up the house, signed the lease, arranged for cannabis removed or planted there. He did not make any arrangements for the future trafficking of the cannabis.
He did not own the plants and maintained that he did not stand to benefit from the sale. He became involved through the principal offender, a co-accused, who asked him to assist with the house and chores. He came to know the co-accused because he also spoke Albanian. The Applicant enjoyed meeting with someone with whom he could speak Albanian as his English was not good enough for him to easily socialize.
He has begun seeing a psychologist who has diagnosed him his as suffering from adjustment disorder.
The following evidence was elicited upon during cross-examination:
Mr Spacho did not know the two co-offenders before he met them at the coffee shop at a time when he wasn't working. At first, they did not tell him anything and said he didn't know anything about that type of work. He was told they had bought a house and needed some help with cleaning outside and maintaining the garden. Initially, he did not get to see what was inside the house.
After he entered the house and saw what was happening, he was told not to speak to anybody about the conduct in a very aggressive manner. He was shocked and worried as he had never been exposed to that type of offending before. He worried about the effect it would have on his family and himself.
The Applicant was never paid and never requested payment. He even paid for his co-accused’s coffee.
Mr Spacho’s involvement in the offending was over an objectively short period of time, from 14 July to 31 August 2018. It was the only offence he has ever committed.
The Applicant could live in Greece or Albania and would likely find somewhere to live and work, however he has no property over there.
Before he went to gaol, he used to go to the park and cinema or meet up with friends.
The Applicant maintained contact with “I” even when in gaol. He would speak to his wife and “I’ would always come to the phone. They have a very close relationship. “I” is very soft and would cry when they made contact by video.
Mr Spacho does not believe his wife would cope if he had to leave Australia as she has several medical issues and relies upon him to be a father to her son. She could not take her son to live in Greece realistically as he does not speak the languages.
When asked why he did not go to the police when he realized that his co-offenders were growing illicit drugs, the Applicant stated that he had thought about it many times but ultimately was afraid of the main offender and worried that he could hurt his family.
He was adamant that he would never re-offend and was very sorry that it had happened.
I found the Applicant to be a frank and honest witness.
Mrs Spacho, the Applicant’s wife
Mrs Spacho’s statement prepared for the Applicant’s County Court proceedings was tendered into evidence.[6] She gave oral evidence in support of the Applicant.
[6] Exhibit 1.
The statement dated 2 June 2021 describes her relationship with Mr Spacho and the life they have together.
The Applicant’s wife describes her husband as “one of the kindest men you will meet”[7] and a gentleman. She explains that her husband has never been in any kind of trouble or done anything wrong.
[7] G-documents, 194.
Because of the Applicant’s situation, Mrs Spacho is experiencing a high level of stress. She describes how her physical and mental health conditions have worsened since her husband’s offending was exposed.
Mrs Spacho writes that she wants to grow her family with the Applicant and that her plans with him have been put on hold following the cancellation of his visa. She “cannot live without her husband”[8] and does not know what she will do if he is removed from Australia.
[8] Ibid.
Mrs Spacho does not speak Greek and does not believe she would be able to receive treatment for her illnesses in Greece. She does not want to “have to choose between [her] husband and her health”.[9]
[9] Ibid.
The Applicant’s wife explains Mr Spacho’s employment history, including his work for priests at churches and time working in funeral homes. She says that Mr Spacho has never done anything else wrong and she promises that he will never appear in Court again.
Mrs Spacho is extremely stressed about the prospect of her husband being returned to Greece and is worried that she would not survive without him by her side.
Mrs Spacho gave oral evidence at the hearing and this is summarised as follows:
Mrs Spacho is a support worker and cook at the bowling alley. Her son is now 16 years old and has no contact with his biological father.
She met the Applicant through mutual friends, and they just “gelled”. They have a very strong relationship and his step-son has been suffering because of the uncertainty and possibility of the Applicant being removed from Australia.
Her son has become very withdrawn and doesn't want to communicate. He has been having a hard time with other students and has had to change schools. “I” no longer has a bubbly and outgoing personality. He was very fit but is now overweight and his health is a day-to-day problem.
“I” becomes very upset whenever they leave the detention centre and Mrs Spacho believes he needs a father figure in his life to teach him the required life skills.
The Applicant’s wife gave evidence that the family has suffered enough for her husband’s mistake and she knows he will not associate with his co-offenders again.
Mrs Spacho would like to continue to grow her family with Mr Spacho. She gave evidence that she needs the Applicant to take care of her, given her numerous physical and mental health conditions.
The Applicant’s wife maintained that if Mr Spacho was forced to leave Australia she could not relocate for at least three years as her son has to finish years 10,11 and 12. Her son could not go to Greece or Albania, as he does not speak the languages. Mrs Spacho would not be able relocate without her son as she is his only support.
Mrs Spacho concluded her oral evidence by reiterating that she needs Mr Spacho and does not know what she would do if he had to leave Australia.
Even though the evidence was given by telephone during her work break, I found the Applicant’s wife to be a honest and compelling witness. It is clear that the Applicant has provided significant support to her and her son and is very close to both of them. His absence has clearly had an adverse effect on both her and her son's physical and mental health.
“I”, the Applicant’s step-son
“I” prepared a statement dated 2 June 2021, as outlined below, that was tendered into evidence as part of the G-documents[10] that were before the Delegate.
[10] Exhibit 1.
“I” does not know his father. Mr Spacho came into his life and has always been there for him since.
The Applicant’s step-son always has a good time with the Applicant and enjoys activities such as fishing, swimming, cooking and camping.
“I” wrote that his step-father has changed since the offending and is scared of being removed from Australia and losing his family. He states Mr Spacho is a great help to his mother and makes her laugh and have fun.
He further sets out that his mother has suffered ever since the offending and is often stressed, crying, angry and sick. “I” maintains that the Applicant is a good man, friend and farther and he “does not know what life would be without him”.[11]
[11] G-documents, 196.
The statement concludes with the Applicant’s step-son writing how sorry Mr Spacho is and how much “I” loves him and needs him to stay apart of his life.
Ms Spacho, the Applicant’s daughter
In a statement dated 2 June 2021, tendered as part of the G-documents[12] the Applicant’s daughter outlined her support for her father.
[12] Exhibit 1.
Ms Spacho sets out that the Applicant is a tolerant man and that has had a strong influence on her life. She is aware of Mr Spacho’s offending and believes he is deeply ashamed and scared for both his future and the possibility of losing his family.
The Applicant’s daughter has seen the Applicant’s relationship with “I” and worries about what would happen to “I” without her father’s influence.
Ms Spacho states her father has always helped those in need and is a hardworking man who has never been in trouble with the law previously.
The statement ends with a description of how supportive Mr Spacho was while his daughter was studying and the many meaningful moments Ms Spacho had with her father as a child.
Dr Peter Kyriakoulis, the Applicant’s psychologist
The Applicant was initially referred to Dr Kyriakoulis by his solicitor for an assessment of his psychological condition with regard to his criminal charges. The psychological assessment was completed on 20 March 2020.
Mr Spacho attended a telehealth appointment on 8 June 2021 as a follow up to discuss his mental health. The Applicant was assessed using the Depression, Anxiety and Stress Scales (DASS-21) and scored within the extremely severe range for all three negative emotional states.
Dr Kyriakoulis reports that Mr Spacho continues to suffer from an adjustment disorder with mixed anxious and depressed mood, a condition that appears to be chronic given the length of time it has persisted.
During the appointment, Mr Spacho expressed remorse and guilt over his offending and reported that he has not been in trouble with the law since. The Applicant explained that he has been focusing on spending more family time with his wife and step-son, who have struggled running a business during the COVID-19 pandemic.
The Applicant reported experiencing restlessness, insomnia, sadness, social withdrawal, and persistent ongoing worry. He has difficulty thinking or talking about his offending behaviour and current charges as he feels shame and becomes overly sensitive and teary.
Dr Kyriakoulis reported that Mr Spacho’s risk of reoffending is low.
Mr Tegkos, the Applicant’s friend
Mr Tegkos has known the Applicant for over 10 years and their families are close.
He was the best man at Mr Spacho’s wedding and believes the Applicant is a “decent, hard working and trustworthy person”.[13]
[13] G-documents, 200.
Mr Tegkos is aware of Mr Spacho’s offending and understands that he is very sorry for his actions and believes the offending was a one-off event.
He writes that he would continue to trust Mr Spacho with his money and belongings.
LEGISLATIVE FRAMEWORK (S501(1))
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[14]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 15 September 2021, the Applicant was sentenced to a term of imprisonment of 19 months with a non-parole period of 11 months.[16]
[16] G-documents, 20.
The Tribunal therefore finds that the Applicant has a “substantial criminal record” and therefore does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[17]
[17] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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 measurable 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 non- citizens 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 non- citizens 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 measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(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; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five non-exhaustive Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[18]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[19]
[18] [2018] FCA 594.
[19] Ibid [23].
BACKGROUND AND OFFENDING
The Applicant pleaded guilty on 13 September 2021 to a charge of cultivating a commercial quantity of cannabis.
On 31 August 2018 the police executed a search warrant at a St Kilda Street property and found a sophisticated hydroponic cannabis setup with mature cannabis plants in four rooms of the house.
A total of 23 cannabis plants were seized, the total weight of the plants seized was 151.36 kilograms which is 6.05 times the threshold for the commercial quantity of cannabis, which is 25 kilograms or 100 plants.
The Prosecution submitted that Mr Spacho was involved in the monitoring and maintenance of the crop house with two other individuals between 14 July and 31 August of 2018. It was not suggested that Mr Spacho played any role in establishing the hydroponic equipment or the crop within the premises.
During the period Mr Spacho was taking orders from his co-offender, however it was the Prosecution’s submission that intercepted phone calls and DNA on the gardening glove suggested that Mr Spacho was an active and enthusiastic participant in the cultivation.
In Sentencing remarks, His Honour Judge Doyle stated that the intercepted phone calls suggested that Mr Spacho was actively involved in the cultivation of the plants and was learning the skills involved in such an enterprise.[20] His Honour also noted that whilst there was no direct evidence of remuneration, the inference that the Applicant was involved with the expectation of financial gain was inescapable.
[20] G-documents, 24.
His Honour also stated:
You have no criminal history. You have strong family support and you can assist your wife in the café she runs. You have complied with your bail conditions for about 30 months now. You have demonstrated a capacity rehabilitate. On the issue of delay I accept that this matter has been hanging over your head for a lengthy period of time and this has weighed heavily on you.
I sentence you on the basis you have very good prospects of rehabilitation and that your rehabilitation is of importance in formulating the sentence in this case.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration, paragraph 8.1(1) of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
THE NATURE AND SERIOUSNESS OF THE APPLICANT’S CONDUCT TO DATE
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I find that the Applicant’s offending was very serious and committed only two years after arriving in Australia.
While cannabis can be regarded at the lower end of seriousness in relation to drugs, the cultivation of cannabis crops is very serious and often used by organized crime gangs to fund more serious drug trafficking.[21]
[21] Exhibits 4, 4a and 4b.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
I find that the sentence received by the Applicant to be a further indication of the seriousness of the offending, bearing in mind that dispositions involving incarceration are the last resort in the sentencing hierarchies used by courts, especially for a first time offence.
I do not consider factors listed in sub-paragraphs (b), (d), (e), (h) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh significantly against revocation of the cancellation of the Applicant’s visa.
THE RISK TO THE AUSTRALIAN COMMUNITY SHOULD THE APPLICANT COMMIT FURTHER OFFENCES OR ENGAGE IN OTHER SERIOUS CONDUCT
Paragraph 8.1.2(1) provides that in considering the need to protect 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted 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 other serious conduct;
(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; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulate that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
History is replete with examples of destructive effects of drug addiction and I consider that any future offending of a similar nature would clearly have the potential to cause physical and/or psychological as well as financial harm to members of the Australian community.
Likelihood of engaging in further criminal or other serious conduct
The Applicant committed the offence within a relatively short time after arriving in Australia. There were no mitigating circumstances explaining why he became involved in assisting his co-accused and, although he only assisted for a short period of time, his actions, including repairing faulty equipment, greatly assisted in the growing of the cannabis.
Although I accept that initially the Applicant may have been motivated with a desire to assist a fellow Albanian speaker, I consider that his continuing involvement arose from a combination of a fear of the consequences of reporting the activities to the police and an expectation of some financial remuneration.
Counter-balancing the above considerations are the facts that the Applicant had previously always contributed to the societies in which he was living, has committed no other offences and committed no further offences during the thirty months whilst awaiting the results of his plea and sentence. As noted above, the sentencing Judge was of the opinion that the Applicant had good prospects of rehabilitation and there was no evidence of any inappropriate behaviour whilst in gaol or detention.
I find that the Applicant has shown genuine remorse and is highly motivated to remain in Australia. He is motivated to support his wife and step-son which, with his good employment record, is something he should have no trouble achieving if allowed to remain in Australia with an appropriate visa. Accordingly, I find that there is a low risk of the Applicant reoffending.
CONCLUSION: PRIMARY CONSIDERATION 1
Even though I have found the risk of reoffending to be low, the potential for harm to the community should the Applicant re-offend causes me to place significant weight against the revocation of the delegate’s decision.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)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, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
I find no evidence that the Applicant has engaged in any conduct that constitutes family violence as defined in the Direction and accordingly I place neutral weight upon this consideration.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has a minor step-son, 16 year old “I”, born in August 2007.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include the matters set out below and I address each sequentially:
·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);
The Applicant is “I”’s stepfather and lived with him and his mother for over four years before being incarcerated or in immigration detention. I find that the relationship was, and still is, very close and that the applicant was an excellent father who provided considerable support to both his wife and her son. His step-son has no other father figure in his life and they have kept in touch by telephone and personal visits whilst the Applicant has been in custody or detention.
·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;
I find the applicant is likely provide a positive parental role until and after his step-son turns 18. Of particular importance is the effect that the Applicant’s absence has had on his step-son to date and I accept that if the step-son is reunited with his father, his current depression, behavioural problems and issues with his education are likely to be alleviated.
·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;

There was some suggestion that the Applicant’s stepson had some problems at school because of his stepfather's conviction but I accept that the major issue affecting his step-son has been the Applicant’s absence rather than his criminal behaviour. As I consider the likelihood of the applicant reoffending to be low, I find that there is little likelihood of any of the Applicant’s future conduct having a negative impact upon the child.
·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;
I found the Applicant’s wife’s evidence very compelling as to the effect his absence has had upon her son and I find that further separation will be detrimental to the child’s wellbeing. Although the applicant could keep contact whilst overseas, I consider that will do little to reduce the very negative impact of any further separation.
·Whether there are other persons who already fulfil a parental role in relation to the child;
The Applicant’s wife fills a parental role with the child but I accept it would be of great assistance for the child to have a father figure in his life.
·Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
The statement from the child and the written and oral evidence from his mother satisfy me the child is very strongly attached to the Applicant, relies upon him and is suffering because of the forced separation.
·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;
There is no evidence to suggest that any part of this consideration is applicable.
·Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The child has suffered no physical trauma as a direct effect of the Applicant’s conduct and the majority of the emotional trauma has been a result of the separation.
Based upon, inter alia, the evidence of the Applicant’s wife, I am satisfied that the Applicant’s step-son could not relocate to Albania or Greece, bearing in mind that he does not speak Greek or Albanian and he is three years away from finishing his schooling in Australia.
I am satisfied that it is in the best interests of the Applicant’s step-son for the Applicant to remain in Australia and I place significant weight in favour of the revocation of the delegate’s decision upon this consideration.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a 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 are 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.
Paragraph 8.4(3) of the Direction provides that 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.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations 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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[22]
[22] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Accordingly, in assessing the weight attributable to Primary Consideration 4, I take into account the Applicant’s serious offending and the risk of harm to the Australian community should he reoffend. I find the Australian community would not expect the Applicant to retain a visa allowing him to remain in the country. I place significant weight upon this consideration against revoking the delegate’s decision.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d). The list of other considerations in section 9 is not exhaustive. However, I find no evidence that there are any other considerations that I should have regard to in these proceedings.
(A) INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(B) EXTENT OF IMPEDIMENTS IF REMOVED
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant speaks both Greek and Albanian, has a reasonable amount of education and has been gainfully employed most of his adult life. He moved to Australia as an adult and would not experience any cultural difficulties reassimilating into the Greek community.
He has family in Greece and support in Albania and could rely upon those links for social, economic and emotional support should he be returned to either country.
I give this consideration very limited weight in favour of revoking the delegate’s decision.
(C) IMPACT ON VICTIMS
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) therefore weighs neutrally.
(D) LINKS TO THE AUSTRALIAN COMMUNITY
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
(a) Immediate family
The Applicant has been married for over five years and has a very strong and loving relationship with his wife and step-son. I find that both would be significantly emotionally impacted should I not revoke the delegate’s decision.
I accept that until her son has finished his schooling, and in all likelihood thereafter, that the Applicant’s wife would not be able to live in Greece or Albania because she does not speak either language and because her family and emotional ties are within Australia.
The Applicant’s father-in-law, who speaks highly of him, lives in Australia. As does a friend who also speaks very positively about the Applicant.
(b) Business interest
There is no evidence to suggest that any weight should be given to this part of the consideration.
Overall, I give moderate weight to this Other Consideration (d) in favour of revoking the delegate’s decision.
FINDINGS: OTHER CONSIDERATIONS
The application of the Other Considerations in the present matter can be summarised as follows:
(d)international non-refoulement obligations: not relevant;
(e)extent of impediments if removed: limited weight in favour of revocation;
(f)impact on victims: neutral weight; and
(g)links to the Australian community including the strength, nature, and duration of ties to Australia; moderate weight in favour of revocation, and the impact on Australian business interests no weight.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
(a)Primary consideration 1: Significant weight against revocation of the cancellation of the Applicant’s visa.
(b)Primary consideration 2: Not relevant.
(c)Primary consideration 3: Significant weight against revocation of the cancellation of the Applicant’s visa.
(d)Primary consideration 4: Significant weight in favour of revoking the cancellation of the Applicant’s visa
I am mindful of the Respondent’s appropriate submissions to the effect that the nature of the offending and the risk to the Australian community should the Applicant re-offend are very serious and should outweigh any considerations in favour of allowing the Applicant to remain in Australia.
However, the Applicant was on bail for about thirty months since offending and before being sentenced which gave him an opportunity to demonstrate his prospects of rehabilitation. He did not offend during that time. This suggests to me that his offending was a ‘one off’ event, having never offended before or since the offence for which he was gaoled. I have no doubt that the prospect of almost certainly losing the right to remain in Australia from any further offending would serve as a great disincentive for the Applicant to reoffend.
I agree with the sentencing Judge’s comments to the effect that the Applicant’s prospects of rehabilitation are good and I have found that the likelihood of him reoffending is low. I consider that his blameless behaviour since offending, including his time in prison and detention is a further indicator of a low risk of re-offending.
He has a wife and minor step-son who very much rely on him and in this very finely balanced matter, I am satisfied that there is another reason why the original decision should be revoked.
Consequently, the correct and preferrable decision is to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is set aside and in substitution I decide that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of A G Melick AO SC, Deputy President

...[sgn].....................................................................
Associate
Dated: 3 February 2023

Date(s) of hearing: 18 and 19 January 2023

Applicant: Self-represented

Advocate for the Respondent: Ms Siran Nyabally

Solicitors for the Respondent: The Australian Government Solicitor

[2023] AATA 83

3 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Date(s) of hearing:	18 and 19 January 2023
Applicant:	Self-represented
Advocate for the Respondent:	Ms Siran Nyabally
Solicitors for the Respondent:	The Australian Government Solicitor