Ta and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2024] ARTA 288
•12 November 2024
Ta and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 288 (12 November 2024)
Applicant/s: Trung Tuc TA
Respondent: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number: 2024/6117
Tribunal:General Member D Stevens
Place:Sydney
Date:12 November 2024
Decision:The Tribunal affirms the decision under review.
.......................[SGD].................................................
General Member D Stevens
CATCHWORDS – MIGRATION– mandatory cancellation of Class BS Subclass 801 Partner visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancellation under section 501CA(4) should be exercised – consideration of Ministerial Direction No. 110 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) ALJR 1005
SECONDARY MATERIALS
Direction No. 110 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
Statement of Reasons
General Member D Stevens
12 November 2024
The Applicant
Mr Trung Tuc Ta (“the Applicant”) is a 40-year-old man who was born in Vietnam and came to Australia on 23 January 2005.[1] He has lived in Australia for just under half his life.
[1] G18, 1-2
The reviewable decision
On 26 July 2023, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) cancelled the Applicant’s Class BS Subclass 801 Partner visa (“visa”).[2] The Applicant sought revocation of the cancellation.[3] On 19 August 2024, a delegate of the Respondent decided not to revoke the cancellation decision.[4] This was on the basis that the delegate was not satisfied that the Applicant passed the character test, and was also not satisfied that there is another reason why the cancellation decision should be revoked. On 21 August 2024, the Applicant lodged a written application for the decision of 19 August 2024 to be reviewed by the Tribunal.
[2] G48, 333
[3] G14, 80
[4] G4, 26
Hearing and evidence
The matter was heard before me on 28 and 29 October 2024. The Applicant appeared before me in person and represented himself. The Respondent was represented by Ms Pieri of Minter Ellison.
The Applicant gave oral evidence, and relied upon written statements and submissions dated 18 September 2024, 21 September 2024, 20 October 2024, and also a statement which appears to be dated February 2024.[5]
[5] G18, 145
The Applicant called five witnesses. Mr Patrick Newton, a forensic psychologist, relied upon his report dated 13 June 2024, and appeared before me via video link from Melbourne on 28 October 2024. The other four witnesses were personal witnesses who appeared before me via video link from Melbourne on 29 October 2024. Each of these witnesses relied upon their written statements made in September 2024 as their evidence in chief. Each of them had also made earlier statements accepted into evidence through the G documents. These witnesses are:
·Ms Bich Thuy Danh (“Ms Danh”), the Applicant’s former wife and the mother of his elder child (statement dated 2 September 2024; also statement dated 2 April 2024[6])
·Ms Thuy Danh, a former sister-in-law of the Applicant (statement dated 15 September 2024; also statement dated 2 April 2024[7])
·Ms Ngoc Kieu Nguyen, a former sister-in-law of the Applicant (statement dated 10 September 2024; also statement dated 2 April 2024[8])
·Mr Van The Nguyen, a friend of the Applicant (statement dated 21 September 2024; also undated statement[9])
[6] G21, 161
[7] G25, 171
[8] G27, 175
[9] G26, 173
Each of these five witnesses were cross-examined by Ms Peiri for the Respondent.
A statement of Thi Hieu Danh, the Applicant’s former mother-in-law, dated 12 September 2024, was also tendered to the Tribunal, but she was not called to give evidence.
I also had the advantage of:
·G-Documents filed on 30 August 2024
·Applicant’s evidence bundle filed on 22 September 2024
·Respondent’s supplementary documents filed on 8 October 2024
·Certificates and email filed by the Applicant on 20 October 2024
Both parties filed a Statement of Facts, Issues and Contentions.
The Law
Subsection 501CA(1) of the Migration Act 1958 (“the Act”) provides that
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person
The section further provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Issues to be decided
Representations were made on the Applicant’s behalf, satisfying paragraph 501CA(4)(a) of the Act.[10]
[10] G13, 78 and G14, 80
This leaves me with two issues to be decided, pursuant to paragraph 501CA(4)(b):
(i) does the Applicant pass the character test (as defined by section 501 of the Act); or, if not
(ii) is there another reason why the original decision should be revoked?
The character test
Relevantly, section 501 of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more
The parties agree that the Applicant does not pass the character test.[11] This is because the Applicant has a substantial criminal record, having been sentenced to a term of imprisonment of more than 12 months. On 10 July 2023, the Applicant was sentenced to a term of imprisonment of 3 years 6 months, with a non-parole period of 1 year, 6 months, in the District Court of New South Wales at Wagga Wagga.[12]
[11] G14, 81; ASFIC para 5; RSFIC para 18
[12] G8, 62 and G7, 61
Is there another reason why the original decision should be revoked?
Section 499 of the Act relevantly provides:
499 Minister may give directions
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
…
(2A) A person or body must comply with a direction under subsection (1).
The Minister has given directions which are relevant to the issue of whether there is another reason why the original decision should be revoked, namely “Direction No. 110 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” (“Direction 110”). Direction 110 sets out both Primary considerations (within section 8) and Other considerations (within section 9). I consider those below with regard to the evidence given and submissions made in this matter, under their respective headings.
Primary considerations
1. Protection of the Australian community from criminal or other serious conduct
Paragraph 8.1(1) of Direction 110 provides that I “should keep in mind that the safety of the Australian community is the highest priority of the Australian Government”. Further, I “should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community”. Given this, it is appropriate that I commence by setting out the Applicant’s criminal history.
The Applicant’s criminal conduct[13]
[13] G6, 46
On 10 August 2012, more than seven years after entering Australia, the Applicant was convicted of his first offence, traffick heroin, at Melbourne County Court. He was convicted, and a community corrections order was imposed. He was required to perform 240 hours of unpaid community service work.
About 4 ½ years later on 23 January 2017, the Applicant was convicted of two offences at Moorabbin Magistrates Court in Victoria, of possess methylamphetamine, and deal with property suspected of being the proceeds of crime. An aggregate fine of $1500 was imposed for both offences.
On 26 October 2021, the Applicant was released on a Conditional Release Order without conviction being recorded for an offence of contravene prohibition / restriction in AVO, to be of good behaviour for a period of 18 months concluding on 25 April 2023.
After entering a plea of guilty on 26 October 2021, on 25 July 2022 the Applicant was convicted of a domestic violence offence of stalk or intimidate intending to cause fear of physical or mental harm at Liverpool Local Court in NSW. He was released on a Community Corrections Order, to be of good behaviour for a period of 18 months concluding on 24 January 2024, and fined $700.[14]
[14] S32, 62
On 10 July 2023, following a plea of guilty, the Applicant was sentenced for an offence of knowingly take part in the supply of 499.9 grams of methamphetamine, being not less than the commercial quantity. (The Court also took into account a charge on a Form 1 document, which I note for completeness but do not take into account.) He was sentenced to a term of imprisonment of 3 years 6 months, with a non-parole period of 1 year, 6 months, in the District Court of New South Wales at Wagga Wagga.[15]
[15] G7, 47 – 48, 61
Paragraph 8.1(2) requires me to consider the nature and seriousness of the Applicant’s criminal offending or other conduct to date, and the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1)(a) of Direction 110 sets out three types of crime or conduct which are “viewed very seriously by the Australian Government and the Australian community”. These are violent and / or sexual crimes; crimes of a violent and / or sexual nature against women or children; and acts of family violence.
The Applicant’s criminal history includes a crime of family violence which involved violence against a woman, namely the offence of stalk or intimidate intending to cause fear of physical or mental harm, in relation to which he was sentenced at Liverpool Local Court in NSW on 25 July 2022 (“the crime of family violence”). The Police facts provided to the Court describe the incident which occurred on 20 September 2021 as follows. (In the facts the Applicant is referred to as “the accused”. The victim is the Applicant’s former partner ((“P”), the mother of his younger child):
The victim and accused … started arguing about the accused constantly gambling and losing money. The argument has lasted for several minutes with the accused yelling at the victim.
The accused has pushed to victim backwards and grabbed her around the neck with [sic] from behind with his right arm, holding her in a head lock. The victim states she could breath [sic] but it was difficult. …
The accused has let her go before pushing the victim backwards against the gate with his right hand around her throat. The accused has squeezed her throat and the victim struggled to breath. …
The accused has let go of the victim and yelled at her “I’ll kill you.” The victim replied “Do it if you want too.” The accused has pushed the victim back into a chair with his right hand around her throat. While the victim was holding down on the chair he continually said “I’ll kill you.”[16]
[16] G10, 67
The Police facts record that the Applicant took part in an electronic interview on 8 October 2021 where:
He denied ever choking the victim or placing his hands around her neck / throat. The accused made admissions to pushing the victim and saying to her “If you don’t let me see my child I’ll kill you”.[17]
[17] G10, 68
On either version of events, this is a crime of family violence involving acts of violence against a woman.
The next consideration relevant to this matter is at paragraph 8.1.1(c) which requires that in considering the seriousness of offending I have regard to “the sentence imposed by the courts for a crime or crimes”. On 10 July 2023 the Applicant was sentenced to a term of imprisonment of 3 years 6 months, with a non-parole period of 1 year, 6 months, in the District Court of New South Wales at Wagga Wagga. The sentencing judge remarked that “section 5 of the Crimes (Sentencing Procedure) Act provides in effect that a court should not impose a sentence of imprisonment unless having considered all possible alternatives, no other sentence is appropriate”.[18] The imposition of this term of imprisonment demonstrates the offending is serious.
[18] G7, 59
The facts of this matter are set out in the remarks of the sentencing judge. In an interview with police after being arrested, the Applicant admitted that he had been hired to take drugs from Sydney to Melbourne, for which he was to be paid $10,000. He flew to Sydney where he owned a van. He left the van in a carpark as arranged, and was contacted once drugs were placed inside. As the vehicle was unregistered, he arranged for a tow truck to tow the van to Melbourne. On searching the van, police found 499.9 grams of methylamphetamine.. The sentencing judge assessed the matter as “below mid-range of seriousness; however … the matter is certainly not towards the lower end of the range”.[19]
[19] G7, 48 - 51
There is no evidence before me of particular impact upon victims as set out in paragraph 8.1.1(d) of Direction 110.
Paragraph 8.1.1(e) requires that I have regard to “the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness”. At sentence in the District Court, the judge remarked that “the offender has a history that, in my view, does not entitle him to any particular leniency”.[20] A trend of increasing seriousness is demonstrated by the regular though intermittent entries in the Applicant’s criminal history, with the sentences imposed starting with fines and conditional release orders, and the most recent sentence being one of full-time custody. The Respondent submits that this “reflects an increase in seriousness”.[21] The sentencing judge in the District Court noted that the community corrections order in relation to the “domestic violence stalk-intimidate offence …. was current at the time of the offending” for which the Applicant was before the District Court, so that “the factor of statutory aggravation within 21A(2)(j) of the Crimes (Sentencing Procedure) Act of committing further offences while on conditional liberty is enlivened”.[22]
[20] G7, 51
[21] RSFIC paragraph 28
[22] G7 51 - 52
Paragraph 8.1.1(h) requires that I have regard to “whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour)”. On 23 April 2019 a delegate of the Respondent wrote to the Applicant and advised:
You may not pass the Character Test … because of your criminal history.
On this occasion your application for a Partner (Residence) (Class BS) visa will not be refused under section 501 of the Act. …
However you are warned that if you engage in any future conduct that brings you within the scope of section 501, cancellation of any visa that you hold and / or refusal of any future visa applications may then be considered and if so, the fact of this warning may weigh heavily against you.”[23]
[23] G43, 318
The Applicant’s former representatives submitted to the Respondent on his behalf that “we are instructed that [the Applicant] did not receive the warning letter and did not understand the potential consequences of further offending until he was incarcerated in 2022. Until that point, he understood that he held a permanent visa and did not realise it could be cancelled. In these circumstances, we submit that no weight should be placed on this factor”.[24]
[24] G14, 94
The Applicant “acknowledges the seriousness of his offences”, but seeks to “distinguish them from those categorised as ‘very serious’ by Australia Government standards”.[25] He relies on the sentencing judge’s classification “of below mid-range in terms of seriousness”.[26] In relation to the crime of family violence, he relies upon the Minister’s delegate’s finding that “while all family violence must be regarded as very serious … the offending in this case can be said to be somewhat below the top of the range of such conduct”.[27]
[25] ASFIC paragraph 14
[26] ASFIC paragraph 10
[27] ASFIC paragraph 92
The Respondent contends that the narcotics offending should be treated as serious,[28] and the domestic violence offences as very serious.[29]
[28] RSFIC paragraph 26
[29] RSFIC paragraph 27
In terms of the nature and seriousness of the Applicant’s conduct, there are two types of offences. The first is his narcotics offences, The seriousness of the last of these offences to date is demonstrated by the imposition of a term of full-time imprisonment in the District Court of New South Wales. The totality of the narcotics offending reveals a trend of increasing seriousness over time. The second type of offending is the family violence offences which attract specific attention in Direction 110. For any type of criminality there will be a hierarchy of offending. While I accept the Applicant’s submission that none of his offending is the worst of its kind, each type of offending is at the least serious for the purposes of Direction 110.
The risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of Direction 110 requires that I “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”. Further, “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) sets out three matters to which I should have regard:
a. the nature of the harm to individuals or the Australian community [from] further criminal or other serious conduct
The nature of the harm is that which flows from the previous criminal conduct of the Applicant, namely his involvement in narcotics offending culminating in sentencing for taking part in the supply of a commercial quantity of methylamphetamine, and his crime of family violence involving acts of violence to a woman.
With regard to narcotics offending, the sentencing judge remarked “The quantities of … methylamphetamine … were commercial quantities. As I often observe, barely a day, let alone a week, goes by where this Court does not deal with an offender … for serious criminal offending whilst under the influence of substances or committed for the purpose of funding the purpose of such substances”.[30] The danger to the Australian community and to individuals from the trade in illicit drugs is well documented and accepted.
[30] G7, 58 - 59
Similarly, the danger to the Australian community and individuals from the scourge of family violence is becoming steadily more apparent. In the current matter, this is clear from multiple references within Direction 110. The Applicant inflicted physical violence upon a woman and made death threats to her while doing so. It is submitted on behalf of the Minister that “Australia has a zero-tolerance policy when it comes to domestic violence”.[31]
b. the likelihood of the non-citizen engaging in further criminal or other serious conduct
[31] RSFIC paragraph 44
In the District Court of New South Wales, Judge Lerve on sentencing the Applicant remarked “I am prepared to find on balance the offender is unlikely to reoffend, and further, he has good prospects of rehabilitation”.[32]
[32] G7, 57
In a report dated 15 June 2023 which was tendered at those sentence proceedings, a clinical psychologist Mr John Machlin stated that the Applicant “accepts responsibility for his wrongdoing … and expresses shame and remorse”.[33]
[33] G29, 197
In a sentencing assessment report prepared for those sentence proceedings and dated 6 June 2023, Mr Paul McLoughlin, a Community Corrections Officer, stated that the Applicant had “been assessed at a Medium-Low risk of reoffending according to the Level of Service Inventory – Revised”.[34]
[34] S51, 112
In his report, Mr Newton “assessed [the Applicant’s] risk of recidivism to drug-related offending to fall in the low-moderate range. His risk of recidivism is trending lower as time progresses”.[35] In relation to intimate-partner violence, Mr Newton “concluded that he is at low-moderate risk of recidivism … but trending towards the ‘low risk’ range over time”.[36]
[35] G28, 191 paragraph 53
[36] G28, 190 paragraph 51
I am required to give weight to time spent in the community since the Applicant’s most recent offence.[37] The Applicant has spent no time in the community since his most recent offence. In this regard, I note that the assessments refer to risk being reduced by parole. Mr Newton noted that “any individual being released from an institutional setting [is likely to] be at elevated risk of relapse at the time of release,” but “the benefit of the supervision and support offered by parole until 2026 provides some reassurance that they can be managed effectively”.[38] Judge Lerve noted in his sentencing remarks that the Applicant “will require a significant period of supervision to ensure that the rehabilitation that is commenced will continue…”.[39] Risk was assessed on the basis that rehabilitation is a continuing process, and not complete. The Applicant has yet to be tested outside of the environment of prison or immigration detention, and is yet to face another major crisis in his life, which will inevitably come.
[37] Direction 110 paragraph 8.1.2(2)(b)(ii)
[38] G28, 190 paragraph16
[39] G7, 60
The Respondent submits that “the Applicant has demonstrated repeat behaviours of recidivism over the duration of his stay in Australia”.[40] Further, the protective factor of parole in relation to the Applicant may be questioned by the Applicant’s breach of the “Conditional Release Order which was in place … when the Applicant committed the offence of ‘[t]ake part supply prohibited drug>=commercial quantity-SI’”.[41]
[40] RSFIC paragraph 33
[41] RSFIC paragraph 29
Under cross-examination, the Applicant was asked about factors that were protective in relation to his offending, such as his daughters and family support. It was put to him that those had been present previously but had not stopped him offending. The Applicant said that he had not learned, and he had now been incarcerated and seen the damage that drugs do to society and to families. Similarly, Mr Newton testified that the Applicant now knew what it was like to be in prison, that he now knows how easy it is to be caught, and he “can’t kid himself anymore”.
Mr Newton reports that the Applicant had a “main period of emotional upheaval” in 2021. He lost his job as a courier in July 2021, after work had declined due to the restrictions of the pandemic. In September 2021, his father passed away. He ended his relationship with P, and committed the crime of family violence.[42] He relapsed to drug use in this context, “consuming up to half a gram of [methamphetamine] three or four days a week”. Further, “he bought drugs on credit … and it was in an effort to ‘repay’ this debt that [the Applicant] committed his most recent drug-related offending”[43]
[42] G28, 181
[43] G28, 182
Mr Newton said in his testimony that it was unlikely that the Applicant would face the same combination of stressors again that he faced in 2021.
Under cross-examination, the Applicant admitted that all of his criminal offending involved the use of drugs, and that he turned to drugs when he has difficulties. He said that he considered that he now had the tools to control himself and stay away from drugs. He also said that everyone has a turning point, and that his is now, he is getting old and cannot afford to keep using drugs.
The reviewable decision was made on 26 July 2023. Since that time, I note the Applicant’s participation in the “SMART Recovery” program from May to September 2024,[44] and the Salvation Army Positive Lifestyle Program from August to September 2024.[45]
[44] Participation and Attendance forms
[45] PLP Case Notes
The Respondent submitted that “apart from some SMART recovery sessions, there is little evidence that the Applicant has sought rehabilitation for his substance abuse, nor is there any evidence that the Applicant has sought rehabilitation for his gambling addiction”.[46]
[46] RSFIC paragraph 38
With respect to the Applicant’s crime of family violence involving acts of violence towards a woman, I set out consideration of risk of reoffending at paragraphs [71] to [72] herein in particular, in considering Primary Consideration 2.
c. 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
In his statement to the Tribunal, the Applicant proclaimed “I sincerely hope to be allowed to remain in Australia for my daughters’ sake”. Further, “my children … are the most important reason for wanting to stay in Australia”.[47]
[47] Statement 18 September 2024, paragraphs 8 and 9.
As his children are four and twelve years old, a short-term visa will not assist him, and this factor is therefore not relevant.
..,.
Regarding risk to the Australian community, both of the Applicant’s types of offending are such that they would cause harm to both the community and to individuals if the Applicant was to offend again. There is evidence of the Applicant’s efforts at rehabilitation and favourable assessments of risk. Against that is the fact that the Applicant has spent no time in the community since his last offending and since he engaged in his efforts at rehabilitation, in circumstances where paragraph 8.1.2(2)(b)9ii) specifically requires that I give weight to time spent in the community since the Applicant’s most recent offence.
Primary consideration 1 - conclusion
The Applicant has been involved in two separate types of offending which enliven attention with respect to Primary consideration 1. The Applicant has committed a crime of family violence which involved violence against a woman. The Applicant has also been involved in other conduct related to domestic violence.[48] He has committed a narcotics offence, the seriousness of which was demonstrated by the imposition of a sentence of a term of fulltime imprisonment. The totality of his narcotics offending reveals a trend of increasing seriousness over time.
[48] See paragraph [61] herein
To his credit the Applicant has engaged in rehabilitative efforts including participation in numerous courses. There are favourable assessments of his risk to the community. However, he has spent no time in the community since his last offending.
Primary Consideration 1 weighs heavily against the revocation of the cancellation of the Applicant’s visa.
2. Family violence committed by the Applicant
Paragraph 8.2(1) of Direction 110 sets out that the “The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia”. Family violence is defined as “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family …, or causes the family member to be fearful”.[49]
[49] Paragraph 4.1
Paragraph 8.2(2)(a) requires me to consider circumstances where “a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence”. I have set out above at paragraphs [26] to [28] herein the crime of family violence for which the Applicant was convicted. There is an additional matter related to this which did not involve violence, and where no conviction was recorded, but did involve the breach of an Apprehended Domestic Violence Order (“ADVO”). On 26 October 2021, the Applicant was released on a Conditional Release Order without conviction being recorded for an offence of contravene prohibition / restriction in AVO, to be of good behaviour for a period of 18 months concluding on 25 April 2023. This resulted from him being at the premises of P, the mother of his younger child, when police attended to conduct a welfare check on 8 October 2021. At the time there was an ADVO in place, arising from the incident of the crime of family violence committed by the Applicant described at paragraphs [26] to [28] herein.. This order required that he not go within 100 metres of where P lives, nor approach nor contact her. A copy of the order was served on the Applicant in Victoria by Victorian police on 23 September 2021.[50]
[50] G11, 70
In his testimony before me, the Applicant stated that he was not aware that he was in breach of the ADVO at the time. He said he had not read the order served upon him, and he did not remember what the police said at the time. He said he attended P’s premises as she had contacted him and told him that their child was sick. He agreed that he should have read the document, and took responsibility for the incident.
“The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen”.[51] The first factor I am to consider in relation to seriousness is the frequency of conduct and any trend of increasing seriousness. The crime of family violence for which the Applicant was convicted was a single incident. The related matter where the Applicant breached the AVO in place as a result of the crime of family violence, did not itself involve any acts of violence by the Applicant.
[51] Paragraph 8.2(1)
There is no indication of earlier family violence. The Applicant’s ex-wife Ms Danh stated in this regard, “in the 15 years I have known him, I have never witnessed any violent behaviour from Truc. We have had our disagreements, but I have always felt safe around him, even during arguments”.[52]
[52] 2 September 2024
Paragraph 8.2(3)(b) requires me to consider “the cumulative effect of repeated acts of family violence”. That is not relevant here.
Paragraph 8.2(3)(c) requires me to consider “rehabilitation achieved … since the person's last known act of family violence”. The crime of family violence occurred on 20 September 2021, and the breach of ADVO occurred on 8 October 2021, more than 37 months ago. The Applicant was arrested and taken into custody on 13 July 2022 in relation to the narcotics offences for which he was sentenced in the District Court on 10 July 2023, and has remained in custody since then, a total period of more than 27 months.
The Applicant has provided evidence of courses he was undertaking in relation to anger management and family violence. In a submission he wrote of his enrolment in the Brief Intervention Service[53] while in immigration detention, in which he “will attend 6-8 sessions with a counsellor to reflect on my past actions and learn strategies to avoid violent behaviours in the future”.[54] In his SFIC he refers to engaging in the Circuit Breaker Program at Villawood Detention Centre,[55] a group-based course dealing with temper, conflict and relationships,[56] and the Positive Lifestyle Program run by the Salvation Army, which deals with anger and stress, among other things.[57]
[53] See para of the respondents subs 42
[54] G18, 152 para 49. He advised he completed this course in his statement of 18 September 2024, paragraph 66.
[55] ASFIC para 27
[56] >
Under cross-examination before me, the Applicant agreed that the crime of family violence was serious, and that he regretted it. He said that he understood that his girlfriend would have been afraid, and that this was why he was attending as many courses as possible, to learn from experts. He said that he was on a waiting list for the Men’s Behaviour course, which cannot be done online. He had also been working with a psychologist.
Mr Newton, a forensic psychologist, reported that he had undertaken “a detailed assessment of the level of risk posed by Mr Ta to further acts of intimate-partner violence”.[58] He said that as a result of the courses the Applicant had undertaken, he was “able not only to identify the signs and triggers for his own anger but also to speak about the strategies he used to calm himself and defuse confrontation”.[59] Mr Newton concluded that the Applicant’s “risk of engaging in further intimate partner violence would currently fall in the low-moderate risk range overall” and was “trending lower with the passage of time”.[60]
[58] Report 13 June 2024 paragraph 43
[59] Report paragraph 47
[60] Report paragraph 48
In his evidence before me, Mr Newton stated that partner violence is “not endemic” to the Applicant’s relationships. He said that the Applicant does not display domineering or controlling behaviours with respect to his partners, and is different to other men that he sees in that he did not demonstrate any sense of entitlement, of misplaced jealousy, or treating a partner as an extension of themselves.
The Respondent raises a concern regarding paragraph 8.2(3)(c)(i), which requires me to consider “the extent to which the person accepts responsibility for their family violence related conduct”. In the Applicant’s SFIC, when referring to the crime of family violence, it states “Shortly after the incident, the victim was able to get away and left for work. It is important to note that the impact of this incident was minor in nature and did not cause serious harm”[61] (emphasis in original). The Respondent submits “that this appears to downplay the seriousness of the conduct and suggests that the applicant does not accept responsibility for his actions … nor that the applicant has achieved rehabilitation”.[62] The Applicant has responded that “I did not seek to minimize the seriousness of these offences, but rather stay true to the facts as laid out by the sentencing court”, [63] and “my statements were based on the judge’s observations, including the fact that the offence did not result in serious harm, and I have shown genuine remorse”.[64]
[61] Paragraph 93
[62] Paragraph 43
[63] Statement 20 October 2024 paragraph 7
[64] Statement 20 October 2024 paragraph 6
Paragraph 8.2.3(d) requires that I consider “whether the non-citizen has reoffended 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”. I note the breach of ADVO, which did not involve any act of violence, set out at paragraph [63] herein.
Primary consideration 2 - conclusion
The Applicant committed a crime of family violence. The Applicant has also, by breaching an ADVO, acted contrary to a mechanism that is designed to protect victims of family violence. The report of Mr Newton is encouraging. The Applicant has acknowledged his wrongdoing and expressed remorse. On balance, Primary Consideration 2 weighs against the revocation of the cancellation of the Applicant’s visa.
3. The strength, nature and duration of ties to Australia
Paragraph 8.3(1) of Direction 110 states that I “must consider the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.
Two of the Applicant’s family members are his minor children, and I shall consider the impact of the decision upon them separately with respect to primary consideration 4.
The Respondent concedes that the Applicant has a third family member in Australia, his ex-wife, Ms Danh, the mother of his elder daughter. In terms of the impact of the decision upon her, Ms Danh’s evidence in her statement largely concerns the impact upon their daughter, which is reasonable in that this will affect Ms Danh. She expanded upon that under cross-examination, referring to her younger child (with her second husband), who may be autistic and who is very demanding of her time. It is clear that Ms Danh has a heavy caring load, and the decision would impact upon her in that it will determine whether, at a future time, the Applicant may share in that load with respect to their child. I shall consider this further with respect to primary consideration 4.
The second part of the consideration is that I “must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community”. For the larger part, the evidence of the Applicant’s ties comes from his ex-wife’s family, namely two of her sisters and her mother.[65] Ms Thuy Danh notes the impact that removal of the Applicant would have upon his daughter, and that witnessing his daughter’s suffering would in turn affect Ms Danh emotionally and mentally. Ms Ngoc Kieu Nguyen also noted the impact upon the Applicant’s daughter. In her evidence she refers the absence of the Applicant having “a profound impact upon [her] own life”, in that she and her “sister … relied on him for support”. The Applicant’s former mother-in-law says that the Applicant’s “absence … has deeply affected all of us” and refers to the Applicant as being part of her family.
[65] See paragraphs [5] and [7] herein
The evidence also includes a statement of Kanh Trinh dated 4 April 2024, the Applicant’s cousin, who is an Australian citizen.[66] The statement does not detail any additional ties with the Australian community, but concludes with a statement of support that “once released from jail, [the Applicant] will have my full support. I have promised [his] mother that I will do what I can to look out for him …”.[67]
[66] G22, 165
[67] G22, 166
Kim Nguyen, a friend of the Applicant’s former mother-in-law, says in a statement that they were “shocked” when they learned of his imprisonment, “as I had known him to be a very caring, responsible and hard-working person”.[68]
[68] Statement dated 2 April 2024, G24, 169
Two other statements include offers of work. The Applicant’s ex-wife’s uncle, Duc Danh described him as a “good man” and “a caring person who takes care of his family and is a hard-working man”. He offers him work with his body-repair and spray-painting business.[69] A sometime work colleague, Matt Dickinson, describes the Applicant as “capable and determined” with an “unquestionable” work ethic, and offers him work in his carpentry business.[70]
[69] Statement dated 15 April 2024, G37, 282
[70] Statement dated 10 April 2024 at G38, 283
With respect to paragraph 8.3(2)(a) of Direction 110, the Applicant arrived in Australia as a young adult aged 21 in 2005. He was not convicted of any offences until he was 28. The crime of family violence and the major drug supply offence were committed after the age of 37.
Primary consideration 3 - conclusion
The Applicant has developed strong ties within the Australian community over a long period, especially with his former wife’s family who have expressed great generosity in their support of him. The ties extend to offers of employment, notwithstanding his criminal history. Primary Consideration 4 weighs in favour of revocation of cancellation of the Applicant’s visa.
4. The best interests of minor children in Australia
I must determine “whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision”.[71]
[71] Direction 110 paragraph 8.4(1)
The Applicant has two minor children, both daughters, each with a different mother. His elder child was born in 2012 and is 12 years old (“E”).[72] His younger child was born in 2019 and is almost 5 years old (“Y”).[73]
[72] G20, 159
[73] G19, 157
Direction 110 provides at paragraph 8.4(3) that where “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”. I shall consider each child separately.
Child E
Paragraph 8.4(4) sets out eight factors I must consider regarding the best interests of a child, where they are relevant.
a. the nature and duration of the relationship between the child and the non-citizen
E is the Applicant’s elder daughter. In her testimony before me Ms Danh, the Applicant’s ex-wife and E’s mother, said that the Applicant stopped living with her and E in 2018. Until then, he would take her to school, and sometimes pick her up of an afternoon. He helped her with her homework, cooked for her and spent time with her. After he stopped living with them, he still helped. He would see her every day when he lived in Melbourne. When he lived in Sydney, he would call her every day, and visit regularly.
In his testimony before me, the Applicant stated that when E was first born his wife was very weak and could not get out of bed. They had previously lost a child. He cared for both the wife and baby at this time, and he continued to care for E until his divorce. After he left the family home, he said saw her every weekend, took her out, and did things for her like painting her bedroom. He said that while in gaol he called her each week, and in immigration detention he calls her every few days. He said that E is close to her mother, but closer to him.
Ms Danh agreed in her testimony that the Applicant has a stronger bond with E than she does. She said that it is upsetting for her, and she does not know why it is so, but her daughter has told her this is the case, that she prefers Dad over Mum, and would prefer to live with him.
In their statements, both of Ms Danh’s sisters speak of the strong bond between the Applicant and E, as does the Applicant’s friend Mr Nguyen.
In her testimony Ms Danh said the last time that E saw her father was in August 2022, and that she has not seen him while he is in immigration detention. However, they speak each day.
b. the extent to which the non-citizen is likely to play a positive parental role in the future
The exact nature of any future parental role will depend upon whether the Applicant remains in Australia.
In her statement of 2 September 2024 Ms Danh states “I have complete confidence in his ability to be a loving and responsible father to E,” and “for E’s sake, I hope Truc is allowed to remain in Australia, where he can continue to guide her and be a positive influence in her life”.
In her testimony before me, she said that he is a very good role model when he is around her. He reads to her, teaches her Vietnamese, takes her out, and cooks and bakes with her.
c. the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child
There is no evidence before me of any impact of the Applicant’s conduct on E, as opposed to the impact of the separation arising from the conduct. In her testimony before me, Ms Danh said that E is aware of her father’s criminal history, and she wants him around as a reminder that there are consequences for actions.
The Respondent submits that “his offences could have a negative impact on [his children]”.[74]
d. the likely effect that any separation from the non-citizen would have on the child
[74] RSFIC paragraph 55
Dr Peter Cook has provided a psychological report regarding E.[75] He notes that, “If Mr Ta was deported … it is highly likely that [E’s] anger towards her mother would intensify”.[76] More directly, “there is a very real prospect that [E’s] psychological difficulties would worsen, and she would be at serious risk of developing chronic psychological difficulties that would impact throughout her life”.[77] This is of great concern to me.
[75] G41, 296
[76] G41, 311
[77] G41, 312
The Respondent submits “the Applicant could stay in touch with his children in other ways”.[78] I accept the Applicant’s testimony that “talking on the phone is different, you can’t exchange emotion”. I also note Ms Danh’s testimony regarding the difficulties that would arise in respect of E visiting her father in Vietnam, and the testimony of both parents that it would be difficult and unfair for E to live in Vietnam.
e. whether there are other persons who already fulfil a parental role in relation to the child
[78] RSFIC para [55]
E’s mother fulfils this role. She is married. In her evidence before me she said that her husband works and provides for E, but she does not relate to him as a parent. Ms Danh says that E has told her husband that he is not her parent, and she does not open up to him.
In her testimony before me, Ms Danh said that she needs the Applicant in Australia, as she is having a very hard time with E. She is scared about E going to high school as children change. E told her that people take pain away by cutting themselves, and she now has to check her bedroom each day for sharp objects. She said she wants the Applicant there to calm and control E more. Ms Danh also said that her son screams all the time and needs her constantly, and she needs help with parenting E.
f. any known views of the child
E did not give evidence. Ms Danh said in her testimony that E does not want to think about her father being removed to Vietnam, and that she will not talk about it. She says that she wants her father to be there for Christmas and her upcoming graduation. At school she tells teachers and other children that her Dad is coming home soon. She said that E is having trouble with abandonment, and that she had contact with her father all her life until his imprisonment.
Dr Cook states that when he interviewed E, he asked her how she would feel if her father had to leave Australia. She responded, “I’d be really sad, I haven’t seen him for so long”.[79]
g. evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen
[79] G41, 307
There is no evidence of this. The Applicant’s crime of family violence did not involve E or her mother. In her statement of 2 September 2024, E’s mother states “in the 15 years that I have known him, I have never witnessed any violent behaviour from Truc. We have had out disagreements, but I have always felt safe around him, even during arguments. I do not believe that Truc is capable of harming anyone, especially those he loves. I have complete confidence in his ability to be a loving and responsible father to E”.
h. evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct
There is no evidence of this. Any trauma appears to result from the consequences of the Applicant’s conduct which has led to his separation from his daughter.
Child Y
a. the nature and duration of the relationship between the child and the non-citizen
Y is the Applicant’s daughter with P. P is the victim of the crime of family violence. The Applicant has spent little time with Y, and has no relationship with her at present. She will soon be 5 years old, and the Applicant has been in custody for the past 27 months. In his testimony before me, the Applicant said he had not seen Y since 2021 due to the ADVO. Given the difficult relationship between the Applicant and Y’s mother, it is not clear that there are prospects of a relationship being built any time soon.
b. the extent to which the non-citizen is likely to play a positive parental role in the future
I acknowledge the expressed desire of the Applicant to be involved in Y’s life. However, given the ADVO and the difficult relationship between the Applicant and Y’s mother, it is not clear that there are great prospects of a relationship being built any time soon.
In his statement dated 18 September 2024, the Applicant states the “support of my daughters’ mothers is crucial in this process. Both Thuy and [P] agree that I should be allowed to stay in Australia to co-parent our daughters and provide for them. This is a unified family decision, and I am grateful for their continued support”.[80] In the absence of any evidence from Y’s mother, I give this assertion little weight in respect of her.
c. the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child
[80] Paragraph 48
There is no evidence before me of any impact of the Applicant’s conduct on Y. The Respondent submits that “his offences could have a negative impact on [his children]”.[81]
d. the likely effect that any separation from the non-citizen would have on the child
[81] RSFIC paragraph 55
There is no evidence before me regarding this.
e. whether there are other persons who already fulfil a parental role in relation to the child
The child’s mother does this.
f. any known views of the child
There is no evidence before me. The child is under 5 years of age.
g. evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen
Y was under two at the time of the Applicant’s crime of family violence. There is no evidence that she witnessed any of that incident. There is nothing to suggest that the Applicant would be violent towards his child.
h. evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct
There is no evidence of this.
Primary consideration 4 - conclusion
The Applicant has a very strong relationship with Child E, but no relationship with Child Y. Given the testimony of the Applicant, Child E’s mother and family, and taking into account the concerns raised by Dr Cook, Primary Consideration 4 weighs heavily in favour of cancellation of the revocation of the Applicant’s visa.
5. expectations of the Australian community
Paragraph 8.5(1) of Direction 110 provides that “the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(2) refers to an expectation of a visa being cancelled in relation to a range of specific offending, which includes “a) acts of family violence”.
The Respondent notes “the applicant committed acts of family violence and has been convicted of drug offences”, putting “members of the Australian community at considerable risk”.[82]
[82] RSFIC paragraph 58
The Applicant submits that due to the “applicant’s specific circumstances” – his time in the Australian community, his contribution to that community, his low risk of reoffending, his ties to the Australian community,[83] “the Tribunal would only attribute minimal adverse weight to this primary consideration”.[84]
[83] This includes a reference to his elderly mother at paragraph 60(d), however this must be an error as the Applicant’s mother is in Vietnam.
[84] ASFIC paragraphs 60 - 61
Primary consideration 5 - conclusion
The Applicant has engaged in more than one type of criminal offending which offends the expectations of the Australian community. His family violence offending is one of the specific matters referred to in paragraph 8.5(2) as possibly making revocation of his visa appropriate simply because of the nature of the offending. Paragraph 8.5(4) requires me to proceed on the basis of the Government’s views as expressed in paragraph 8.5, and not to independently assess the community’s expectations in a particular case. Primary Consideration 5 weighs against the cancellation of the revocation of the Applicant’s visa.
Other considerations
a). legal consequences of the decision
In his SFIC, “the Applicant raises claims that are capable of giving rise to Australia’s non-refoulement obligations. The gist of the Applicant’s claim is as follows: he previously had a gambling addiction and a history of drug use, including dealing with drugs”.[85] However, in his testimony before me, he said that he would be “persecuted because of my father, not my criminal record”. This is consistent with paragraphs 69 to 74 of the Applicant’s SFIC.
[85] Paragraph 68
He raises that he may face harm or persecution because his father supported and worked for South Vietnam in the Vietnam war and had a role in the South Vietnamese military;[86] his father supported the US in the war;[87] and his father had “long-standing issues with the government”.[88] He was pressed about this when giving evidence, and he advised “he got Mum to destroy evidence, I have nothing to show my case”. When he was asked how the authorities would know about his father, he replied “If they want to know about my father, then they will know”.
[86] ASFIC paragraphs 69 and 70
[87] ASFIC paragraph 69
[88] ASFIC paragraph 72
He said this could lead to him suffering significant harm, including “being arbitrarily deprived of his life, subjected to torture, enduring cruel or inhuman treatment or punishment, or facing degrading treatment or punishment”.[89] When giving evidence before me the Applicant was asked what might happen to him. He replied “I’m afraid I could be arrested, gaoled, or punished to do community work”.
[89] ASFIC paragraph 74
The Applicant said that he felt vulnerable after his father passed away, as he was no longer there to protect him in Vietnam.[90] When under cross-examination before me, he was asked how his father had protected him, he replied “I’m not sure, but without my father I fear for my life in Vietnam”.
[90] ASFIC paragraph 72
He raised that his return could result in his family members in Vietnam being persecuted and imprisoned.[91] When asked in cross-examination whether his mother or sister in Vietnam had been threatened over his father’s role in the Vietnam War, he replied “not yet”.
[91] ASFIC paragraph 72
There was little of substance put to me regarding this issue, only vaguely expressed concerns of uncertain treatment for general sins of his father. While I have read and understand the representations and listened to the Applicant’s testimony and submissions, ultimately there is not a great deal for me to evaluate on this issue.
The Respondent submits that, consistently with the approach of the majority of the High Court in Plaintiff M1/2021 v Minister for Home Affairs (“Plaintiff M1”),[92] where, as in this case, the representations include a claim of non-refoulement under domestic law, an “available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa”.[93]
[92] (2022) 400 ALR 417; [2022] HCA 17
[93] RSFIC paragraph 61; Plaintiff M1 [30]
In his SFIC the Applicant submits that I can give “greater weight to a small risk” if justified on the materials, “independent of Australia’s non-refoulement obligations”, in relation to the Applicant’s claims regarding his father’s political views,[94] relying on BCR16 v Minister for Immigration and Border Protection (“BCR16”).[95]
[94] ASFIC paragraph 75
[95] [2017] FCAFC 96 at [49]
The Respondent submits with respect to BCR16 that the majority in Plaintiff M1[96] “found that to the extent that this path of reasoning was relied on to conclude that it was not open to a decision-maker to defer consideration of non-refoulement obligations, this should not be adopted”.[97]
[96] At [32]
[97] RSFIC paragraph 69
The Applicant submits in his SFIC that revocation will result in the Applicant remaining in immigration detention until he is removed, which will compromise his right to personal liberty.[98] The Respondent submits that following the decision of the High Court in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs,[99] and the entry into law of the BV Conditions Act, that indefinite detention is “not a legal possibility”.[100]
[98] ASFIC paragraph 76
[99] (2023) 97 ALJR 1005
[100] RSFIC 68
Other consideration a - conclusion
On balance this consideration weighs mildly in favour of revocation of the cancellation of the Applicant’s visa.
b). extent of impediments if removed
Paragraph 9.2 of Direction 110 requires that I “consider 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 doing this, I am to take into account a number of specific factors:
the non-citizen's age and health
With regard to this issue, the Applicant raises that he is 40 years old. In terms of physical health, he refers to a history of high blood pressure. In terms of mental health he notes his past drug use and gambling disorder. He says that if deported his situation will worsen, and also that he may not be able to access the specialised treatment and rehabilitation he requires in Vietnam due to financial constraints.[101]
[101] ASFIC paragraphs 79 and 80
In his testimony before me, the Applicant said that while he sometimes gambles, he does not have a gambling addiction and has no gambling issues. When asked if he had a drug addiction, he said “not anymore”. He agreed that he would be able to receive treatment for high blood pressure in Vietnam.
whether there are substantial language or cultural barriers
The Applicant submits “notwithstanding the applicant’s fluency in Vietnamese and his understanding of Vietnamese culture, this does not mean he will be free from limitations and communication barriers”.[102]
[102] ASFIC paragraph 85
The Respondent submits that the Applicant “still has family in Vietnam, … while he may experience some cultural, economic or linguistic difficulties, these will be limited, taking into account that he completed his education in Vietnam and maintained contact with family in Vietnam”.[103]
any social, medical and/or economic support available to them in that country
[103] RSFIC paragraph 73
The Applicant submits that he anticipates “employment hardships, financial constraints, the absence of family support, limitations in accessing social security and medical systems, and challenges in obtaining psychological / psychiatric treatment”.[104]
[104] ASFIC paragraph 86
Other consideration b - conclusion
The Applicant will face some hardship if removed to Vietnam, however he is fluent in the language, understands the customs and lived there for half of his life.
On balance this consideration weighs mildly in favour of revocation of the cancellation of the Applicant’s visa.
c). impact on Australian business interests
Direction 110 provides guidance that “an employment link would generally only be given weight where the decision … would significantly compromise the delivery of a major project, or delivery of an important service in Australia”.[105]
[105] Paragraph 9.3(1)
There is a brief reference but no submission in relation to this factor in the Applicant’s Statement of Facts, Issues and Contentions.[106] In a submission to the National Character Consideration Centre made on the Applicant’s behalf on 23 July 2024, his former legal representatives stated “we do not consider this to be a relevant consideration in this matter”.[107]
[106] ASFIC paragraph 90
[107] G14, 121
In its SFIC, the Respondent “contends that limited, if any weight, should be given to this consideration”.[108]
[108] RSFIC paragraph 71
Other consideration c - conclusion
There is no evidence before me that my decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. Accordingly, I place no weight on this consideration.
CONCLUSION
I have found that the Applicant does not pass the character test. I must therefore consider whether there is another reason why the original decision should be revoked. I am to do this by considering all of the considerations within Direction 110. I have done that, and taken into account all of the testimony, other evidence, and submissions made to me.
In considering Direction 110, the Tribunal finds:
i. Primary Consideration 1 weighs heavily against the cancellation of the revocation of the Applicant’s visa
ii. Primary Consideration 2 weighs against the cancellation of the revocation of the Applicant’s visa
iii. Primary Consideration 3 weighs in favour of the cancellation of the revocation of the Applicant’s visa
iv. Primary Consideration 4 weighs heavily in favour of the cancellation of the revocation of the Applicant’s visa
v. Primary Consideration 5 weighs against the cancellation of the revocation of the Applicant’s visa
vi. The Other Considerations weigh mildly in favour of the cancellation of the revocation of the Applicant’s visa
Paragraph 7(2) requires that the primary consideration of protection of the Australian community from criminal or other serious conduct is generally to be given greater weight than other primary considerations. Further, primary considerations should generally be given greater weight than other considerations. Taking these requirements into account, and the findings at paragraph [146] herein, on balance the considerations weigh against the cancellation of the revocation of the Applicant’s visa.
The Tribunal affirms the decision under review.
Date(s) of hearing: 28 & 29 October 2024 Applicant: In person Solicitors for the Respondent: Ms K Pieri, Minter Ellison
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