SXYD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

SXYD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4277 (8 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7679
Re:SXYD
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:8 December 2022
Place:Sydney

The correct or preferable decision is to set aside the delegate’s decision dated 15 September 2022 not to revoke the cancellation of the Applicant’s visa, and in substitution it is decided that the cancellation of the Applicant’s Special Category (subclass 444) visa is revoked.
........................[SGD]................................................
The Hon. John Pascoe AC CVO, Deputy President
Catchwords
MIGRATION – visa cancellation – mandatory cancellation under s 501(3A) of the Migration Act 1958 – where the applicant does not pass the character test – whether there is ‘another reason’ to revoke the cancellation – consideration of Direction No. 90 – protection of the Australian community – expectations of the Australian community – impediments to removal – links to the Australian community – decision set aside and substituted
Legislation
Migration Act 1958 (Cth) s 499, 501, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
8 December 2022

This is an application seeking review of a decision of a delegate of the Minister made on 15 September 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the mandatory cancellation under s 501(3A) of the Act of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
Background
The Respondent’s Statement of Facts, Issues and Contentions contained a detailed description of the background of this matter, which is replicated below.
The applicant is a 43-year-old citizen of New Zealand. He first arrived in Australia in May 1981 as a 20-month-old child. He was last granted a Special Category (Subclass 444) visa (the visa) on 12 December 1998.
On 1 October 2009, the applicant was given notice of the consideration to cancel his visa, and on 27 November 2009, the applicant was given notice of a decision made by the Minister not to cancel his visa under s 501 of the Act. He was also with this formal warning in that correspondence:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
The applicant signed an acknowledgment on 30 November 2009 confirming receipt of that notice and the warning.
On 23 May 2013, the applicant was convicted in the Sydney District Court of ‘conspiracy to commit offence – robbery armed with offensive weapon and robbery armed with offensive weapon’. He was sentenced to a term of 12 years’ imprisonment for these offences.
The applicant was given notice on 15 April 2020 that his visa had again been cancelled 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 was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c)).
The applicant subsequently sought revocation on 3 June 2020 and provided submissions and further evidence in support.
On 15 September 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision. The applicant sought review of this decision in the Tribunal on 19 September 2022.
The Issue
It is not disputed by the parties that the applicant does not pass the character test as defined in s 501(6); and as such, the sole issue for determination by this Tribunal is whether there is another reason why the cancellation decision should be revoked under s 501CA(4) of the Act.
Law & Direction 90
The relevant legislation and policy is outlined below.
Section 501CA(4) of the Act states:
(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 8 March 2021 the Minister made the Direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4). The Direction came into effect on 15 April 2021.
Paragraph 5.2 of the Direction sets out the following principles relevant to the exercise of the discretion:
(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-biding, 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 sufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that, informed by the principles in paragraph 5.2 of the Direction, a decision-maker must take into account the considerations identified in section 8 and 9, where relevant to the decision.
Section 8 of the Direction provides that the four primary considerations are:
(a)protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);
(b)whether the conduct engaged in constituted family violence (Primary Consideration 2);
(c)the best interests of minor children in Australia (Primary Consideration 3); and
(d)expectations of the Australian community (Primary Consideration 4).
Section 9 of the Direction provides that the four other considerations which must be taken into account where relevant are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims;
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests.
Evidence
Evidence of the Applicant
The Applicant affirmed his statement of 22 November 2022.
When cross-examined, the Applicant gave evidence that he arrived in Australia in 1981 as a baby. He had returned to New Zealand in 1997 to see his mother and ‘get off heroin’. He had lived with his mother in Auckland, and had worked in plastics manufacturing for ‘a couple of months’. When not working he said he stayed at home with his sisters, but also travelled New Zealand ‘once [he] got clean’. He states in his written evidence that he has two biological sisters, T, C, and a biological brother H, and a half-sister and half-brother. The Applicant states in his written evidence that all of his immediately family is in Australia.
He said he had a sister who lived in New Zealand with his mother for about ten years, and now had a partner and children in Australia. She did not work. The Applicant did not know if she had friends in New Zealand.
When questioned as to where he had lived in Australia since birth, the Applicant said that he first lived with his father and biological mother in a house in Belmore with approximately other 18 – 20 family members. The family later moved to Claymore, and the Applicant remembered going to school in Claymore. He had moved from Claymore to Minto while still attending primary school, and playing rugby league. He lived with relatives, and went to school with his cousins.
The Applicant committed his first offence when he left home. He said he ‘took off and went down the wrong path’. At the time he was living with friends.
Once the Applicant was released from youth detention, he said that he went home to his parents. Later, after his first time in prison, he went to live with his sister T, who is the mother of M. MC also lived in the house. The Applicant said he did not live with them long.
In 1999, when he got out of prison, he had a partner, A, but after being sentenced to a longer jail term, he moved in with his father and then his sister, and later with a new partner, with whom he remained living until he was arrested again.
The Applicant said that he was not out long at all, and that he had spent time constantly in and out of prison.
He said he had had a partner from 2006 until he went to prison in 2011.
The Applicant said that his family members in Australia knew that he was drugs, and that he was in and out of detention. He said that his family had seen his journey, and had always been there to support him. He said his nephew M did not see a lot of his offending, but would visit him in prison as a small child with his parents. He had not had a specific conversation with M about his offending and drug use. His brother-in-law, MC, had witnessed his drug use and he had used drugs while MC and his sister’s children were in the house, but not in front of them.
The Applicant said that if he were released from detention, he would leave with this father and step-mother. He said he could get a job ‘straight away’ with MC if he were released.
His brother-in-law had a major job in Nowra, but the applicant would have to clear any arrangements with regards to this with his parole officers.
The Applicant gave evidence that his father and stepmother had serious health issues, including his father having had a kidney transplant.
The Applicant said that he had a lot of nieces and nephews, and that he was particularly close with a number of them, particularly those listed in paragraphs 52 & 53 of his affidavit, five of whom are currently minors. The Applicant said that he speaks to M all the time of the phone, and that he had written a training program for him to assist him with his fitness in laying rugby league, and that they talk often about how he is going. He is also close to his other nephews JC, and L, and had regular conversations with them.
The Applicant was cross-examined at length on his criminal history, including driving without a driver’s licence, and the offences leading to his first warning about his visa being cancelled.
The Applicant said that he was ‘off [his] face’ at the time of his offending, that he did not remember some of the offending but that he had accepted responsibility for what he did, accepted all of the evidence against him and tried not to waste court time. The applicant was questioned about a number of incidences that occurred in prison, including using drugs, threatening a corrections officer, and being involved in a fight with another inmate. Some of the matters that the applicant was asked about that occurred in gaol were not offences committed by him but by his cousin, who had a similar name.
The Applicant admitted to incorrectly filling in his incoming passenger card in December 1998, in failing to disclose his criminal offences. He said he was ‘off [his] face’ at the time.
When asked about his drug use, the Applicant said he had been addicted to heroin for many years, and admitted to using a lot of different drugs, but said that heroin was the main one. He had gone straight into heroin at the age of 15, and had gradually increased the amount he was using until he went to prison.
Prior to his most recent prison sentence, the Applicant gave evidence that he was able to refrain from using heroin for a period, but would then relapse. He had been able to work, but stated using heroin once he returned to prison.
The Applicant referred to his mental health issues and the problems he had suffered as a teenager, including the sexual abuse he had suffered as a child. The Applicant gave evidence that he had suffered a serious head injury at the age of 13, which necessitated major surgery for the removal of a blood clot. This injury meant that he was no longer able to play rugby league, a sport he loved, and a passion shared with his family.
He was abused at the age of 14 while in juvenile detention, and said that what had happened there had been a very big factor in his heroin use. He had started using alcohol after his accident at 13, but after his abuse in juvenile detention, he had turned to heroin.
The Applicant gave evidence that he had made a civil claim against the abuse he ‘had suffered years back’ but had not pursued it as he was scared. Ultimately, he pushed ahead with his claim, which resulted in a Letter of Apology from the New South Wales Department of Communities and Justice dated 12 October 2022 which was produced in evidence. He had also received an offer of monetary compensation.
The Applicant admitted that he had continued to offend, after the decision to revoke in 2009 by the Department, but said that he did not have the right frame of mind, and even though he had asked for ‘one more chance’ he had kept offending.
The Applicant felt he would not reoffend because his mental health was better and he was on the right medication to help him. He said that he had received the help he needed, and he had been working on the outside before his release from prison and that he had very good support.
He had received counselling in relation to the abuse he had suffered, and had online courses with Odyssey House.
The Applicant said he would continue his counselling and his work with Odyssey House if he were released into the community.
The Applicant expressed considerable remorse for his offending, and the harm done to the victims of his actions.
Evidence of TN
TN affirmed her statement of 23 November 2022.
She gave evidence that she and her husband had had recent surgery.
TN said that she knew a lot about the Applicant’s drug problems, and that she and her husband had always been there for him. She did not know all of the details as to the drugs used by the Applicant or whether he used drugs in her house.
TN said that she and her husband currently received assistance from church members.
Evidence of JNS
JNS affirmed his statement of 23 November 2022.
When cross-examined, JNS said he knew of the Applicant’s criminal history which he said included armed robbery and that he had a long history of offences, including offences in jail and drug use.
When questioned about drug use, he said that the Applicant had used marijuana and said that one night the Applicant came home ‘off his face’ and that he knew from the look of him that he was on heroin. He did not know how often the Applicant had used heroin, but that the Applicant had not used heroin in his house or any house that he lived in.
JNS said that both he and his wife were both very unwell, and that no one currently helped them around the house.
Evidence of MC
MC affirmed his statement of 25 May 2020.
MC said that he would be able to provide full-time employment to the Applicant if he were to be released into the community. He said that the Applicant had had training and experience as a steel-fixer, and that the Applicant was a good worker. Work was available in Nowra/Wollongong.
The Applicant had previously worked with MC for six months to one year. MC said that he would not employ someone in his company if they were on drugs.
MC said he knew about the Applicant’s offending, including armed robbery and drug use, but said that the Applicant had been clean for a long while. He was unaware of the Applicant ever using drugs in his home whilst the Applicant was living his family.
Evidence of Dr EK
Dr EK affirmed her report dated 25 October 2022.
Dr EK was questioned by the Respondent’s representative as to whether she would change her assessment as to the Applicant’s likelihood of reoffending if he had not disclosed to her a number of issues including his alcohol usage, details of his drug use, or his access to regular psychology consultations.
With regard to the Applicant’s drug use in custody, DR EK said it would only be relevant if it occurred after 2017. She said she may also have changed her opinion if she had reviewed the various police statements about the Applicant. Dr EK also gave evidence that if the Applicant had not fully disclosed his drug and alcohol abuse that may raise questions as to the Applicant’s insight, which could cause her to change her opinion, particularly her opinion as to potential treatment options.
Dr EK said she did not use any standardised assessment tools in making her assessment of the Applicant.
In making reaching her conclusion that the Applicant was at low to moderate risk of reoffending, Dr EK said she took into account a number of factors including:
·The intervention that occurred with regard to the Applicant’s mental health;
·The Applicant’s willingness to engage in treatment which was likely to continue if he were released into the community;
·The Applicant’s ability to see the impact of his behaviour on victims;
·The Applicant’s remorse; and
·The fact that he had not engaged in substance abuse for five years.
In making her assessment, Dr EK had taken into account a range of factors, including the sexual abuse that the Applicant had suffered while in youth detention.
Primary Considerations
Primary Consideration 1 – Protection of the Australian Community
In considering this primary consideration, I have had regard to paragraph 8.1 of Direction 90.
There are two aspects to this consideration – the nature and seriousness of the conduct of the non-citizen, and the risk to the Australian community should the non-citizen reoffend.
Nature and seriousness of the Applicant’s conduct
There is no doubt that the Applicant’s offending was of a very serious nature, and has resulted in the Applicant spending significant periods of time in prison. Of the approximately 30 times that the Applicant had been sentenced to terms of imprisonment, around 16 of them involved a sentence of 12 months or more.

The Applicant started his offending at a young age, primarily with larceny offences, and the seriousness of his crimes increased over time.
His last offence involved armed robbery with violence, including threats to kill, gaffer-taping the eyes of his victims, and depriving them of liberty. His victims included women in what must have been a particularly terrifying ordeal.
The remarks of the various sentencing judges are important, and the Tribunal takes note of them. These remarks include the following on the effect of an armed robbery on a victim:
The offence of armed robbery is an offence not only against property but against the person. It is an offence which is perceived as a life threatening situation for a majority of victims who may experience significant physical and psychological problems as a result of their involvement in these offences. That is why the legislature, the Courts and the community regard the offence so seriously.
It is impossible to imagine the terror these victims were forced to endure in the course of these armed robberies, not knowing what their ultimate fate was to be at the hands of the offender and his cooffender.
It is also noteworthy that the Applicant committed a serious offence within four months of a warning from the Department as to his visa cancellation. At the very least, this must be seen as a flagrant disregard for the authority of the Australian government.
The Applicant also admitted to incorrectly filling in his incoming passenger card in 1998 and failing to disclose criminal offences. When cross-examined in relation to this issue, he said that he had not failed to disclose his offences in order to gain an advantage, but rather that he was ‘off his face’ at the time. Such an explanation cannot be a justification for his failure to disclose what was by then a lengthy criminal record and once again goes to the issue of respect for the Australian government and, by extension, respect for the Australian people.
It was put to the Tribunal by the representative of the Applicant that the severity of the Applicant’s criminal conduct should be downgraded because of the abuse suffered by the Applicant as a young man, approximately 14 years of age, when he was in youth detention and his subsequent heroin use. The Respondent argued strongly against such a proposition.
The evidence established quite clearly that the Applicant had been a victim of abuse, and that his heroin use started shortly after he was released from juvenile detention. It took him many years to disclose the abuse that he had suffered and in response to a question from the Tribunal, he said that his heroin use had been triggered by the abuse that he had suffered whilst in youth detention.
He gave further evidence that one of the offences recorded against him whilst he was in jail was his refusal to bare his buttocks to a corrections officer, and that this was a direct result of the abuse he had suffered. I accept that evidence, and in assessing this particular consideration, I place limited weight on the Applicant’s offences whilst in detention noting in particular that in his last years in prison, he did not commit any offences and he had not committed any offences whilst in immigration detention.
Overall, in assessing this consideration, especially given the increasing violence of the Applicant’s offending, the circumstances of his last offence and the remarks of the sentencing judge, I find the Applicant’s offending to be extremely serious.
Risk of to the community should the Applicant reoffend
The Tribunal heard evidence from Dr EK in relation to the Applicant’s risk of reoffending. In her oral evidence, Dr EK said that she assessed the Applicant’s risk of reoffending as low to moderate. She said that the following factors were relevant in making her assessment, namely the fact that the Applicant was now receiving appropriate treatment for his mental health, including counselling and medication; his willingness to engage in treatment, which Dr EK thought he would continue; his ability to see the adverse effects of his behaviour on his victims, his remorse, and the fact that overall he had not used illicit substances for five years. Dr EK felt that the Applicant’s offending was the culmination a number of factors, including sexual abuse whilst in detention as a teenager.
Under cross-examination, Dr EK said that she may change her opinion if she had the various police statements which were before the Tribunal, or if the Applicant had not been accessing regular psychological counselling and /or using drugs regularly within the last five years.
In her written report, Dr EK said at paragraph [50] of her report that:
On the balance of risk and protective factors, it is my opinion that Mr [SXYD] has a low moderate risk of re-offending, and this can be significantly reduced if he remains drug free in the community and engage in appropriate intervention.
Dr EK also referred to the Applicant’s remorse, and in her report, at paragraph [40], she noted as follows:
Mr [SXYD] stated that he “does not want to make excuses [for my criminal behaviours] … I’ve been trying to do a lot more things to turn my life.” When asked to elaborate, he said, “I have opened up [about] things that happened in my life to finally get things off my chest…My experience in gaol this time woke me up.” When it was noted to him that he had re-offended despite previous times spent in gaol, he said, “Now I am a lot older and a lot more mature.”
Dr EK also noted in her report that the Applicant would have accommodation and employment if he were released into the community, and that this would reduce his risk of reoffending. Dr EK expressed the view that the Applicant needed to form new social connections and positive social activity.
Dr EK also observed that the Applicant’s insight into his offending had increased with his time spent in gaol in her report, and that he had acknowledged the “physical and emotional harm his behaviours had caused the victims.’
I also note that the Applicant has engaged in and completed a series of rehabilitative and educational programs while in gaol to gain insight into his offending, and that if released into the community the Applicant will be on parole for at least a period of two years and thus under close supervision which is also likely to assist with his rehabilitation.
When cross-examined, Dr EK said that she had not used any standardised assessment tool in assessing the Applicant, but rather had relied upon the history and documents given to her, including her interview with the Applicant.
In final submissions, it was put to the Tribunal on behalf of the Respondent that Dr EK’s opinion should be discounted because she may have been misled in relation to the Applicant’s drug use and offending whilst in custody. It was also put to the Tribunal that given the extremely serious nature of the Applicant’s offences, there was a real risk of harm to the community if he were to reoffend. The Tribunal’s attention was drawn to the fact that the Applicant had given similar assurances to those he had given to the Tribunal as to changes in his behaviour at the time he put forward submissions to the Department as to why his visa should not be cancelled in 2009. In that occasion, he had not lived up to nay of his undertakings, and had continued to reoffend, his offences becoming more serious.
The Tribunal also notes the comments of the District Court judge sentencing the Applicant in 2013 regarding the potential success of the Applicant’s prospects of rehabilitation, and the Applicant having made no real attempt to address his drug addiction, and his subsequent struggles in handling negativity or stress without substance abuse.
Overall, I am of the opinion that the Applicant’s risk of reoffending is moderate, and in particular I agree with Dr EK that much will depend on the Applicant remaining drug free. His capacity to do so has not been tested in the community, but I give weight to the protective factors referred to by Dr EK and in particular the fact that the Applicant has been able to disclose his sexual abuse, and that he had received an apology and financial compensation which he said was important to him, and that he was seeking effective medical treatment, including taking medication, for his complex medical and mental health issues.
In considering the totality of the evidence, I find that this consideration weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Primary Consideration 2 – Family Violence
There is nothing before the Tribunal to indicate that this consideration is relevant to this matter, and I find it has neutral weight.
Primary Consideration 3 – Best Interests of Minor Children
In this regard, I note paragraph 8.3 of Direction 90.
The Applicant is not the parent of any minor children. However, he does have a large number of nieces and nephews, some of whom are minors. In particular, he said that he had very regular contact including several times per week with a number of his minor nieces and nephews. In relation to one of his nephews, M, the Applicant had prepared a rugby training program for him and his nephew spoke to him regularly about his progress with training and his capacities at rugby league.
I also note that there is, in evidence, a written statement from M, the Applicant’s 17-year-old nephew, that attests to his desire to have his uncle remain in Australia.
I accept the evidence that the Applicant has had ongoing contact with a number of his minor nieces and nephews including visits whilst the Applicant was incarcerated.
The Applicant comes from a family that has a strong interest in rugby league, and the Applicant himself has a strong and ongoing interest in the game. Indeed, the evidence given to the Tribunal was that one of the factors which lead to the Applicant’s depression and ‘going off the rails’ was the injury that he suffered at age 13 that lead to him no longer being able to play rugby league which he loved. This shared interest creates a strong bond between the Applicant and his nephews in particular.
The Respondent argued that as a lot of the contact between the Applicant and his nieces and nephews had been via social media, it would be possible for the Applicant to have an effective relationship with them from New Zealand. The Respondent also drew attention to the fact that the Applicant had used drugs in the house where some of the Applicant’s nieces and nephews had lived, although the Applicant said he had never used rugs in front of the children.
The Respondent also drew the Tribunal’s attention to an incident in immigration detention, where one of the Applicant’s minor nephews was said to have passed tobacco to him, and the incident was caught on CCTV. The Applicant denied that such an incident had occurred, and I make no finding on this matter.
Having regard to all of the evidence, I find that the Applicant does play a role in the lives of his minor nieces and nephews, and provided the Applicant remains drug-free, that relationship would be enhanced if he to remain in Australia.
Overall, I give this consideration moderate weight in favour of revocation, especially given that the Applicant does not have parental responsibility.
Primary Consideration 4 – Expectations of the Australian Community
Direction 90 sets out the expectations of the Australian community. Broadly, these encapsulate the findings of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185, where the Full Court decided by majority that it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. Rather, the expectations of the community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4.
There is clear authority that it is not the Tribunal’s role to determine for itself the expectations of the Australian community. The Tribunal’s role is to determine the weight to be given to this consideration.
In assessing the weight to be given to this consideration, I find it highly relevant that the Applicant has lived in Australia for all but the first year of his life and that, in my view, there is very strong evidence that his addiction to heroin started after he was sexually abused whilst in youth detention.
There can be no doubt that such physical abuse and abuse of trust was likely to lead to addiction of some kind especially as the Applicant felt unable to disclose what had happened to him. He gave evidence of a sense of shame, and it was not until many years after that he was actually able to disclose what had happened to him. Even at the time of hearing, he had not disclosed what had happened to him at age 14 to his family despite having a received a letter of apology and an offer of compensation.
A system that should have protected and assisted the Applicant in rehabilitation failed him completely, and was likely to have contributed significantly to his lengthy criminal history and addiction to drugs.
Especially given that he came to Australia at such a young age, even though the Australian community’s tolerance for his crimes may be low, this must be mitigated by the fact that government on behalf of the community has accepted responsibility for abuse suffered by the Applicant whilst he was in the care of the juvenile justice system.
Overall, I give this consideration moderate weight against revocation. In reaching this conclusion, I have given consideration to the Respondent’s argument that over the two decades of the Applicant being involved in correctives services, he did not address the issue of the trauma caused by his abuse and failed to take advantage of the opportunities to deal with it earlier. I note, however, that the Respondent stated clearly that such abuse ‘should never have happened’.
Other Considerations
International non-refoulement obligations
There is nothing before the Tribunal to indicate that this consideration is relevant to this matter, and I find it has neutral weight.
Extent of impediments if removed
In this regard I note paragraph 9.2.1 of Direction 90.
The Applicant has lived in Australia since he was 1 year old. He is now 42 years old. He did make a trip to New Zealand in 1997/98, to see his birth mother who at that stage was separated from his father.
He gave evidence that he had returned to New Zealand to catch up with his mother and also to be free of drugs. He lived in New Zealand with his birth mother and three of his sisters. He worked for a limited period of time, and said when he was drug-fee he took the opportunity to travel and look at the sites in New Zealand. He has not subsequently returned to New Zealand. I accept that the Applicant would not face any significant cultural and language barriers if he were removed to New Zealand.
It is unclear if the Applicant has any relatives currently living in New Zealand, although the Respondent submitted that as the Applicant’s sister had lived in New Zealand for over 20 years, she would have friends that may be able to assist the Applicant. However, there was no evidence before the Tribunal of any such friends.
The Applicant stated that all of his close family lives in Australia. Dr EK’s report appears to reflect that the Applicant has an older brother in New Zealand, however I note that this was not raised by either party at hearing.
It is very relevant in my opinion that the report of Dr EK, she paid particular attention to the importance of the Applicant’s family supporting him and that this would be critical in ensuring that he did not reoffend. In her report, Dr EK stated at paragraph [49] that:
Mr [SXYD] will have accommodation and employment in the community. Upon conditions that he refrain from leaving his supportive home environment and maintains stable employment, his risk of future offending would reduce.
It is also worth noting that the Applicant clearly has skills as a steel-fixer and that he may be able to find employment in New Zealand in this regard, however, I acknowledge that it may take him some time to find employment.
The Applicant has been accessing treatment in Australia, including having completed a number of courses with Odyssey House. He said that he will continue to work with Odyssey House when he is released and ongoing this will be important to him if he were to be released into the community.
The Applicant has undertaken a number of courses in relation to substance abuse in Australia, and I accept the evidence that he is likely to continue counselling with Odyssey House if he is released, and also to continue with his mental health treatment. Although mental health treatment is available in New Zealand, it is likely that it will take some time to access and that is likely to contribute to his reverting to drug abuse, particularly if he is denied the close contact and support of his family.
I have noted earlier Dr EK’s evidence as to the importance of the Applicant having stable employment and accommodation in reducing his chances of reoffending. I accept the argument that the Applicant would be able to access good mental health and counselling services in New Zealand. However, I also accept Dr EK’s evidence as to the deleterious effect on the Applicant of separation from his family and the need to re-establish himself if he were to be removed from Australia. In particular, Dr EK stated:
Mr [SXYD] has strong family support in Australia, including family members who can provide him with accommodation and employment if he is permitted to return to the community. Overall, Mr [SXYD]’s prognosis for rehabilitation is significantly more positive in Australia than in New Zealand.
The Applicant has only spent a very limited period of time in New Zealand, and that was more than 20 years ago. It is unlikely that everything in New Zealand has stayed the same as it was in 1998.
I also take into account when looking at impediments to the Applicant’s removal the fact that the Applicant has been addressing the trauma he suffered as a child, that he is apparently party to legal proceedings in relation to the abuse he suffered, and has received an offer of settlement. These matters are best concluded along with ongoing treatment if the Applicant remains in Australia.
Overall, I give this consideration very heavy weight in favour of revocation of the cancellation of the Applicant’s visa.
Impact on victims
There is nothing before the Tribunal to indicate that this consideration is relevant to this matter, and I find it has neutral weight.
Links to the Australian community
Strength, nature and duration of ties
The Applicant has very strong ties to the Australian community. He is clearly part of a strong, loving and supportive extended family. A number of his family members gave evidence to the Tribunal in support of his application, including his father, step-mother, sisters, nephew, family friend, and his brother-in-law who also confirmed an offer of employment to the Applicant if he to be released into the community. The Applicant also clearly has strong ties with his nieces and nephews who are over 18, as well as those who are minors.
In his statement dated 22 November 2022, the Applicant stated that:
I know with my family’s support here in Australia, I will be able to achieve the goals I have set forth for myself. I have a support network here in Australia, in a country that I have lived in all my life.
Further, I note that there is evidence that the Applicant’s father and stepmother have ill-health, and that they need the Applicant to help and support them with this. I also note that the Applicant’s stepmother, in her statement dated 23 November 2022, asserts that the Applicant’s father would not be able to travel to New Zealand due to his ill-health should the Applicant be removed there.
I note also that the Applicant has lived in Australia for over 40 years. The Applicant’s sister, in her statement dated 28 May 2020, stated:
My brother has numerous ties to the community he has been rai sed in Australia since childhood he identifys as an Australian he is also related by blood to h is nephews and nieces who are of Aboriginal/Australian background who are Australian citizens [sic]. And his family ties are all here in Australia after our parents separation we have only ever had each other as siblings.
Impact on Australian business interests

There is nothing before the Tribunal to indicate this part of the consideration is relevant, and so I give it neutral weight.
Overall, in considering all of the evidence before the Tribunal, I find that this consideration has heavy weight in favour of revocation of the cancellation of the Applicant’s visa.
Consideration
In this matter, although the nature and seriousness of the Applicant’s offending and the risk of harm to the Australian community weighs heavily against him, I find that on balance, taking into account all of the other considerations, the overall weight is in favour of revocation of the cancellation decision.
In coming to such a conclusion, I have regard to the fact that the Applicant’s ability to abstain from drug use in the community has not been tested, and that he has given undertakings to the Department before and failed to live up to them. I also give heavy weight to the fact that he has suffered serious abuse whilst in the care of the juvenile justice system, the likely effect this had on his substance abuse and his consequent offending, and the importance of his remaining in Australia in order to have uninterrupted access to counselling, family support and employment.
It is important that the Applicant take advantage of the opportunity to re-establish himself in a positive way. He is, in my opinion, fully aware of the consequences if he fails to do so.
Decision
The correct or preferable decision is to set aside the delegate’s decision dated 15 September 2022 not to revoke the cancellation of the Applicant’s visa, and in substitution it is decided that the cancellation of the Applicant’s Special Category (subclass 444) visa is revoked.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

.............................[SGD]...........................................
Associate
Dated: 8 December 2022

Date(s) of hearing: 28 & 29 November 2022

Solicitors for the Applicant: Ms M. Mamarot, SouthWest Migration & Legal Services

Solicitors for the Respondent: Mr C. West, Sparke Helmore Lawyers

[2022] AATA 4277

8 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	28 & 29 November 2022
Solicitors for the Applicant:	Ms M. Mamarot, SouthWest Migration & Legal Services
Solicitors for the Respondent:	Mr C. West, Sparke Helmore Lawyers