Te Waiti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 135
•2 February 2022
Te Waiti and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 135 (2 February 2022)
Division:GENERAL DIVISION
File Number: 2021/8658
Re:Hayden Te Waiti
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:2 February 2022
Place:Perth
The decision of the delegate of the Minister dated 9 November 2021 not to revoke the cancellation of the Applicant's class TY subclass 444 special category (temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
......................[Sgd]..................................................
Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 37-year-old man who arrived in Australia as a three year old – reviewable decision set aside and substituted
LEGISLATION
Criminal Code Act Compilation Act 1913 (WA) – s 392
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(1)(ba), 501, 500(6B), 500(6L), 501(3A), 501(6), 501(7A), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Misuse of Drugs Act 1981 (WA) – ss 6(1)(a), 6(1)(c), 33(2)(c)
CASES
Bradbury v Western Australia [2020] WASCA 214
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Re CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
SCJD and Minister for Home Affairs [2018] AATA 4020
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
2 February 2022
INTRODUCTION
The Applicant seeks review of the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, dated 9 November 2021, not to revoke the cancellation of the Applicant's class TY subclass 444 special category (temporary) visa (Visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State (the Cancellation Decision).
The Applicant remains incarcerated at Karnet Prison Farm in Western Australia.
The application is made pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Respondent made under s 501CA(4) of the Act.
This application was heard on 12 January 2022 at the Tribunal’s Registry in Perth. The Applicant attended in person and was represented by Mr Dominic Mckenna, assisted by Ms Eve Watts of Inclusive Migration Australia. Mr Arran Gerrard of Australian Government Solicitor represented the Respondent.
The Applicant gave oral evidence at the hearing and was cross-examined by Mr Gerrard. Ms Clark, Mrs D Clark, Ms Brittain and the Applicant’s stepdaughter also gave oral evidence at the hearing. Ms Clark and Ms Brittain were cross-examined by Mr Gerrard.
In this matter, the Tribunal must decide whether it is satisfied that the Applicant passes the character test as defined by s 501(6) of the Act, and if the Applicant does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
BACKGROUND
The Applicant is a 37-year-old New Zealand citizen who has resided in Australia since the age of three (G28/119). He was taken to have been granted the special category visa on 1 September 1994 (Exhibit R1, para 3).
The Applicant has a lengthy criminal history with offences committed during two distinct periods, 2005 to 2007 and 2016 to 2020 (G3/32–33).
During the first period the Applicant received convictions for nine separate offences. Significantly, on 12 September 2006, the Applicant was a “getaway driver” in an aggravated armed robbery of a fast food store contrary to s 392 of the Criminal Code Act Compilation Act 1913 (WA). The Applicant travelled to the store with a co-offender in a stolen vehicle and remained in the vehicle while the co-offender entered the store wearing a balaclava and produced a handgun. The co-offender placed that firearm into the back of a female shop assistant within the store, and eventually obtained $1,300 in cash from the store safe. The co-offender returned to the waiting motor vehicle and the Applicant drove from the scene. The Applicant was identified in the subsequent WA police investigation but attended a police station on his own volition and made full admissions to the offence (SG5/39).
Her Honour Justice Johnson sentenced the Applicant in the Perth Supreme Court on 16 May 2007 for his involvement in the aggravated armed robbery. Her Honour put the offence at the “lower end of the scale” and believed the appropriate sentence to be of five years imprisonment but reduced this to two years taking into account the Applicant’s plea of guilty, antecedents and the principles of parity and totality (G5/44).
On 7 December 2007, the Department of Immigration and Citizenship, now the Department of Home Affairs (the Department), sent the Applicant a formal counselling letter which stated (G27/117):
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa or refusal of your application under section 501 of the Act. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
(Emphasis removed.)
The Applicant subsequently accrued further 11 convictions for offences committed during the second period of offending behaviour between 2016 and 2020.
On 10 February 2021, the Applicant was convicted in the Perth District Court, on his pleas of guilty, to two offences as follows (G3/32–33; G4/34–39):
(a)Possession of a prohibited drug (methylamphetamine, 14 grams) with intent to sell and supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA Act); and
(b)Conspiracy to supply a prohibited drug (methylamphetamine, 1.75 grams (part of the 14 grams in count one)) to another person, contrary to ss 6(1)(c) and 33(2)(c) of the MDA Act.
His Honour Judge Troy, on 10 February 2021, sentenced the Applicant to two years’ imprisonment for the possession offence, and nine months for the conspiracy offence, to be served concurrently. The sentences commenced on the same day and the Applicant was made eligible for parole (Exhibit R2). The Applicant’s earliest date for release on parole is 9 February 2022 (SG26/104).
On 9 March 2021, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act (G29/120–12).
On 24 March 2021, the Applicant made representations seeking revocation of the visa cancellation and on 28 March 2021, the Applicant’s representatives provided written submission in favour of the revocation application (G6;G7;G8 and G9). On 9 November 2021, a delegate of the Respondent decided that the Applicant’s visa should remain cancelled as the delegate was not satisfied that there was “another reason” why the mandatory cancellation decision should be revoked (G2/18–29).
On 16 November 2021, the Applicant applied to the Tribunal, within time, for a review of the delegate’s decision (G1/1–6). The Applicant claimed the delegate’s decision was wrong for the following reasons: “Refusal is Contradictory. Additional Relevant Information Not Considered. Inconsistent Weighting to Criteria” (G1/5).
THE HEARING AND EVIDENCE
The Tribunal had the following material before it:
·“G-Documents” (G1–G31, pp 1–152);
·Supplementary “G-Documents” (SG1–SG33, pp 1–158);
·Applicant's Parole Application (Exhibit A1);
·Witness Statement of Krystol Clark dated 12 January 2022 (Exhibit A2);
·Witness Statement of Steven Bradley Drage dated 13 December 2021 (Exhibit A3);
·Witness Statement of Tim Daniel (Exhibit A4);
·Witness Statement of Christopher Clark dated 14 December 2021 (Exhibit A5);
·Witness Statement of Daphne Elaine Shirley Clark dated 12 January 2022 (Exhibit A6);
·Witness Statement of John Addison Clark dated 12 January 2022 (Exhibit A7);
·Witness Statement of Rebecca Brittain dated 12 January 2022 (Exhibit A8);
·Applicant’s Letter to Hakea Prison dated 15 December 2021 (Exhibit A9);
·Applicant's CV, Work Tickets and Licenses (Exhibit A10);
·Photographs of the Applicant with his family (Exhibit A11);
·Coroner's Record of Investigation into Death (late Mr Anthony John Bilick) dated 22 January 2018 (Exhibit A12);
·Applicant's Driving Learner’s Permit (Exhibit A13);
·Email from Hakea Prison dated 6 January 2022 (Exhibit A14);
·Transcript of Proceedings in the Magistrates Court dated 18 February 2021 (Exhibit A15);
·Transcript of Proceedings in the Magistrates Court dated 20 November 2017 (Exhibit A16);
·Cancellation of License Suspension Order Notification letters dated 4 June 2020 (Exhibit A17);
·WAMDL Sanctions as at 09 June 2020 (Exhibit A18);
·Family Violence Restraining Order dated 26 February 2018 (Exhibit A19);
·Family Violence Restraining Order Application and Dismissal dated 23 February 2018 (Exhibit A20);
·Letter from Family Relationship Centre dated 17 April 2019 (Exhibit A21);
·Letter from WA Police Major Crash Investigation Section, Ref 196/2019 (Exhibit A22);
·Applicant's Response to Respondent's Statement of Facts, Issues and Contentions Decision under Review dated 7 January 2021[1] (Exhibit A23);
·Applicant's Amended Statement of Facts, Issues and Contentions Decision under Review dated 15 December 2021 (Exhibit A24);
·Respondent’s Statement of Facts, Issues and Contentions dated 6 January 2022 (Exhibit R1);
·Sentencing remarks dated 10 February 2021 (Exhibit R2); and
·the oral evidence of the Applicant, Ms K Clark, Mrs D Clark, Ms Brittain and the Applicant’s stepdaughter.
LEGISLATIVE AND POLICY FRAMEWORK
[1] The Tribunal notes that the Applicant’s response was filed on 7 January 2022.
Migration Act
The Migration Act provides powers for the Respondent to refuse or cancel visas on character grounds. In certain circumstances where a visa is cancelled under these powers, the Respondent can revoke that cancellation decision. This generally involves consideration of whether a person passes the character test, and if the person does not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
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)); …
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly provides:
(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.
...
(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.
(Original emphasis.)
Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(1) the performance of those functions; or
(2) the exercise of those powers.
Section 499(2A) of the Act provides that, “A person or body must comply with a direction under subsection (1).”
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021.
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the chara cter test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are as follows:
(a) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(b) 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.
(c) 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 measureable [sic] risk of causing physical harm to the Australian community.
(d) 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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(e) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section … 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section … 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
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.
CONSIDERATION
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined under s 501(6) of the Act (see para [22] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see paras [11] and [12] above) of the Act provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) of the Act provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. Both sub-sections apply in the Applicant’s case as a consequence of the sentences imposed on 16 May 2007 and 10 February 2021.
The Applicant accepts (Exhibit A24, para 28), and the Tribunal finds that he does not pass the character test and therefore he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. It follows that the determinative issue is whether the power under s 501CA(4)(b)(ii) of the Act should be exercised on the basis that there is “another reason” why the decision under s 501(3A) of the Act should be revoked (see para [17] above).
IS THERE ANY OTHER REASON WHY CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.0 of the Direction 90)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers 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.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction 90)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Respondent submits that the Applicant’s offending should be regarded as serious because he has a reasonably lengthy criminal record and has committed 21[2] offences over a period of 15 years (Exhibit R1, para 30). The Applicant’s criminal history is detailed in the Check Results Report, dated 2 March 2021 (G3/32–33).
[2] The Tribunal notes that there are only 20 offences listed in the Applicant’s criminal history check, dated 2 March 2021 (G3/32-33).
On 16 May 2007, in the Supreme Court of Western Australia, the Applicant was convicted of “Aggravated Armed Robbery”. Johnson J found that the offence was of a very serious nature and imposed a term of imprisonment of two years (G5/44). In her sentencing remarks, Her Honour stated (G5/41–42):
The reason it comes before the Supreme Court rather than a District or a Magistrates Court is because it is considered to be one of the most serious offences that can be committed. There are obviously more serious ones such as any type of unlawful killing but apart from that it is an offence which is viewed by the community, irrespective of perhaps more recent attitudes, as extremely serious.
One of the reasons for that is the impact on the victims of these offences and I mean by that not just the people whose property is taken but the people who have to be threatened with a gun or a knife and any other weapon and the long-term impact on them and they’re usually people who are young and are less resilient to that type of incident, and in your case there was a threat to kill the manager who was only 21 years old.
That threat wasn’t made by you but your conduct facilitated that offence being carried out. A gun was placed into the back of a 19-year old girl who had done nothing more than go to work at the place that was robbed. $1300 was received from that offence and that was an amount of money which doesn’t sound like a lot to some people but in fact is quite a large sum for some of these offences that are being committed these days.
So there is nothing really about the circumstances of this particular offence that make it any less serious than the norm. You, as I said, facilitated that and you did so although without a large amount of pre-planning or any pre-planning but with knowledge of what was going to occur.
…
[Y]ou knew what was going to happen, you knew that this fellow was a person who had been in prison and was potentially dangerous and that you did not involve yourself not simply because of any allegiances but in particular, and this is a very important point, that you did with the purpose of helping him get away, not just simply helping him commit it but to improving his prospects of getting away because you thought you were a superior driver.
That unfortunately gives you a quite considerable amount of involvement.
Mr Mckenna submits that when considering the criminality of this offence, the Tribunal should take into account that the Applicant was not the principal offender; that the principal offender received a longer sentence of five years, and the Applicant only received a two year sentence (Transcript/135). The Tribunal notes that the Applicant pleaded guilty to the aggravated armed robbery charge and was represented by counsel.
With regard to paragraph 8.1.1(1)(g) of Direction 90, following this conviction the Applicant was issued a formal counselling letter, dated 7 December 2007 (G27/117–118). Although the Applicant’s Amended Statement of Facts, Issues and Contentions, dated 15 December 2021 (Applicant’s SOFIC) includes the submission: “[t]he applicant stated that he did not recall receiving this warning, it was not signed as acknowledged by the applicant” (Exhibit A24, para 34), he confirmed during the hearing that he had received the letter while in prison. The Applicant also confirmed his awareness that further offending would put him at risk of having his visa cancelled and removal to New Zealand (Transcript/89).
Subsequently on 10 February 2021, the Applicant was convicted of` one count of “Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)” and one count of “Conspired to sell or supply methylamphetamine”. Troy DCJ found that the offences were serious drug offences and imposed a term of imprisonment of two years (Exhibit R2).
In submissions regarding this offending, Mr McKenna submitted that the Applicant’s criminality was less than the nomenclature of the convictions suggested. He said that the Applicant was not a person of great intelligence, and the circumstances of the conviction were (Transcript/136):
Someone putting their hand up and pleading guilty to possessing methamphetamine, 14 grams. They haven’t even got the 14 – I mean, he’s literally pleaded guilty in a situation where there’s no certificate of analysis, they haven’t found anything in his possession. He’s simply said to someone on the phone, who is a friend of his who’s obviously connected with the drug world, “I’ve got 14 or I’ve got half an ounce”.
The Tribunal notes and agrees with the Respondent’s contention that “there is a really high bar to go behind a conviction” (Transcript/148). With respect to the Applicant’s drug convictions, he was represented by counsel, pleaded guilty, and thus accepted the elements of the offences. The Tribunal concludes that Judge Troy’s sentencing remarks and the sentences imposed reflect the seriousness with which the court viewed the Applicant’s offending behaviour.
Having regard to its obligations under paragraph 8.1.1(1)(a) of Direction 90, the Tribunal notes that an Interim Family Violence Restraining Order (FVRO) binding the Applicant was made by the Magistrates Court on 26 February 2018 on application by the Applicant’s estranged wife (Exhibit A19). The evidence presented before the Tribunal, especially the Applicant’s testimony, suggests that the family violence incidents are at the lower end of the family violence scale. However, the Tribunal notes that there is lack of substantiated evidence in relation to these incidences. Therefore, having regard to the relevant evidence, the Tribunal is of the view that this circumstance, taken by itself, does not sit squarely in the very serious conduct category comprehended by paragraph 8.1.1(1)(a) of Direction 90 and considers it more fully under a broader analysis pursuant to the second primary consideration (paragraph 8(2) of Direction 90) below.
The Tribunal is required to consider the frequency of the Applicant’s offending, whether there is any trend of increasing seriousness, and the cumulative effect of repeat offending.
In addition to the serious offences discussed above, the Applicant has convictions for “Possess a Prohibited Drug (Methylamphetamine)” (2006, 2016), “Steal Motor Vehicle” (2016), “Breach of Bail” (2017), and various traffic offences (SG2/2–6). Again, Mr McKenna made submissions regarding the Applicant’s responsibility and criminality with respect to these offences, referred to by the Respondent as the “offences and convictions that appear on the fringes” (Transcript/148). Although these submissions cast some shadow over particular convictions and perhaps elicit some sympathy for the Applicant, the Tribunal does not accept that they and the available evidence are so compelling that going behind the convictions in the current consideration could be contemplated. Further, these offences add, albeit in a small way, to the seriousness of the Applicant’s overall offending behaviour, however taken with his illicit substance abuse and the resources expended in investigating and prosecuting the offences, it can be said that there is a cumulative effect of the Applicant’s offending.
The Tribunal is satisfied that paragraphs 8.1.1(1) (b) and (f) are not relevant considerations in assessing the seriousness of the Applicant’s offending.
The Applicant’s SOFIC contains the following statement (Exhibit A24, para 31.b.):
The applicant accepts his crimes are very serious, he accepts that his involvement as the driver in the aggravated robbery and his possession, conspiracy to sell and use drugs are a scourge to society and that the impact upon the victims of the robbery, individuals who live in a drug fuelled existence, the victims of crimes because of addiction make our community more dangerous.
The Tribunal is satisfied that the nature and magnitude of the Applicant’s offending was serious. That was clear in the sentencing judges’ remarks, the sentences imposed, and the Applicant’s own admission in the paragraph above. The Tribunal finds that this element of the first primary consideration prescribed in paragraph 8.1(1) weighs very heavily against revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction 90)
Paragraph 8.1.2(1) of Direction 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
There is no statutory constraint on the way a decision-maker assesses risk apart from there being a rational and probative basis for the risk assessment (see BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41]).
The Tribunal’s task is described in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [111] as follows:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
Nature of the harm (para 8.1.2(2)(a) of Direction 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction 90).
The impact of illicit drugs in Australia is well-known. Should the Applicant again engage in drug operations there could likely be an adverse impact on law and order, public health, safety of the community, and of course detrimental consequences for his own family. In SCJD and Minister for Home Affairs [2018] AATA 4020, Senior Member Cameron discussed the harms of trafficking as follows:
81. The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
There is also the potential for harm that could result from further driving offences, and stealing a motor vehicle could cause financial suffering and inconvenience to members of the community. The potential for physical, mental and financial harm as a result of a further involvement in an armed robbery appears self-evident. The sentencing remarks by Johnson J (see para [40] above) are relevant to this consideration of the nature of potential harm.
The community should not be expected to tolerate the risk and resultant harm should the Applicant commit similar offending in the future.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction 90)
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 8.1.2(2)(b) of Direction 90).
The Applicant submits that he is rehabilitated and that he will not re-offend for the following reasons (Exhibit A24, para 38):
(a)he lived a prosocial life for five years before his present incarceration and remained drug and offence free despite stresses related to his estrange wife;
(b)he has formed positive relationships with his partner’s family including her grandparents and has been the main support for the family during the COVID period;
(c)he has arranged participation in counselling upon release from custody;
(d)he has full-time employment on release;
(e)over the last five years he has matured and built on his kind nature and skills, and his character references demonstrate his changed behaviour and the availability of continuing and reliable support;
(f)he and his partner plan to marry and have regular access to his children;
(g)during the current term of imprisonment he has abstained from negative influences, supported other prisoners, and worked throughout, resulting in positive prison reports;
(h)he experienced positive life changes during the significant period between his two incarcerations; and
(i)all prison assessments in 2021, particularly the Management and Placement–Sentenced Report (SG26/104), indicate that he is a low risk of re-offending.
The Respondent contends that the following cogent reasons should cause the Tribunal to be concerned about the Applicant’s risk of re-offending (Exhibit R1, para 40):
40.1. The applicant has a reasonably lengthy criminal history which took place over 2 distinct periods. There is only a relatively recent acceptance of responsibility in respect of the index offences (4 November 2020).
40.2. His second set of offences occurred after receiving a formal warning from the Department. The respondent notes that the applicant denies receiving such a warning even though he accepts that it was correctly addressed and he was resident in Casuarina Prison at that time.
40.3. The applicant also denies the basis which lead to his ex-partner seeking a Violence Restraining Order and denies his culpability in his driving offences. The respondent contends that there is sufficient evidence in the form of the Violence Restraining Orders themselves and the police reports to support a finding that the applicant has engaged in family violence. Furthermore, there is no reason not to accept the applicant’s criminal history as stated. There is certainly no cogent evidence before the Tribunal which supports the applicant’s claim that the driving offences were committed by a person who is now deceased. Compelling evidence would be needed for such a contention to be accepted.
40.4. Similarly, there is no reason to accept the applicant’s denial that he advised the author of the Management and Placement Report dated 11 February 2021 that he had used methylamphetamine approximately 4 times in the 8 months prior to imprisonment. That report constitutes objective and independent evidence. In the light of the applicant’s substance abuse history it is, of course, very concerning that he used methylamphetamine so recently.
40.5. The consistent denials are indicative of only limited remorse on the part of the applicant and raise concerns in respect of his rehabilitation. In this respect, Troy DCJ was not satisfied on the balance of probabilities that the applicant was remorseful for his actions in the index offences in the sense described by the Court of Appeal in Bradbury v Western Australia [2020] WASCA 214 at [53].
(Footnotes omitted.)
The Applicant was treatment assessed on 14 June 2007, during his earlier prison term, and participation in the cognitive skills program “Think First” was recommended (SG25/103). He completed that intensive intervention program on 21 April 2008 (SG23/92–94), however unfortunately it did not prevent further offending behaviour. On 11 March 2021, WA Corrective Services administered its risk of re-offending screening tool to the Applicant and determined him to be a low risk of re-offending, and he was not recommended for criminogenic programs at that time (SG31/130).
The Applicant is eligible for release to parole on 9 February 2022, but the Prisoners Review Board of Western Australia (the Board) had not considered his parole application as at the hearing date of the present matter. The Parole Review Report prepared by Karnet Prison Farm for the Board’s consideration recommends that parole be approved due to: no assessed treatment needs; viable parole plan; confirmed accommodation; good prison conduct and industry reports; and successful completion of previous supervision orders (SG29/123). The Tribunal has regard to the prison parole recommendation, cognisant of the necessary difference between the risk considerations required of the Tribunal and the Board. For example, the Tribunal must take a longer perspective and the Board can impose conditions of parole to mitigate the offender’s risk to the community.
The Applicant has history of abusing illicit substance and is serving a sentence for serious drug-related offending. Although to his credit he has taken steps to address his substance use in prison and is committed to counselling on release, he has not had the opportunity to engage in intensive programmatic intervention. Even with such intervention, his abstinence from illicit substances on release could not be assumed.
The Tribunal notes the significant positive changes in the Applicant’s life during the protracted period that he was on bail prior to sentencing and the current term of imprisonment. Imprisonment will have had a salutary impact on the Applicant. However, having regard to the Applicant’s history, it cannot be said that he presents no risk of reoffending, and the risk could escalate should he relapse to illicit substances. The level of risk must be balanced against the serious harm that could result should the Applicant offend further. Given the nature of the potential harm if the Applicant were to reoffend (see paras [57] and [58] above) and the likelihood of reoffending, albeit small, the Tribunal considers the risk to the Australian community of the Applicant reoffending is unacceptable.
Tribunal’s conclusion on the first primary consideration
Having cumulative regard to the nature and seriousness of the Applicant’s offending and conduct, and the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the first primary consideration, the protection of the Australian community, weighs strongly against revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction 90)
The commencement of Direction 90 introduced this separate primary consideration to which decision-makers must have regard. In paragraph 5.2(5) of Direction 90, family violence is included in the type of conduct, or suspected conduct, where even strong countervailing considerations may not justify revoking a mandatory visa cancellation. Family violence is also prescribed in Direction 90 as a factor to be considered with respect to the first primary consideration “protection of the Australian community” and the fourth primary consideration “expectations of the Australian community”.
Paragraph 4(1) of Direction 90 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i) preventing the family from making or keeping connections with his or her family, friends or culture; or
j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(Original emphasis.)
Paragraph 8.2 of Direction 90 relevantly provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
The delegate found that there was no evidence that the Applicant had engaged in family violence as defined under Direction 90 (G2/24).
The Respondent suggests that “[p]robably the most vexed consideration for the Tribunal in this matter is the question of family violence” (Transcript/151), and that the relevant evidence is limited (Exhibit R1, para 49; Transcript/151).
However, the Respondent submits that the documents produced under summons and before the Tribunal establish that the Applicant has been subject to a FVRO, and that evidence of a pattern of behaviour is indicated on the basis that the Applicant has engaged in the following (Exhibit R1, para 48):
·On 24 January 2016, the applicant’s former partner attended the … Police Station and reported that following an argument the applicant “became aggressive, pushed her and grabbed her around the throat”;
·On 1 October 2017, the applicant’s former partner again attended a police station wanting to obtain a VRO against the applicant, her brother and his wife. She claimed that “her partner was abusive towards her”;
·On 22 February 2018, the applicant’s former partner telephoned the police reporting that the applicant was “smashing on her front door and refusing to leave”;
·On the same day the Applicant’s former partner said she had applied for a Violence Restraining Order.
(Footnotes removed.)
In the Applicant’s SOFIC, he denies any involvement in family violence and contends that the considerations set out in paragraph 8.2 of Direction 90 do not apply to him (Exhibit A24, para 55). The Applicant also makes the following submissions (Exhibit A24, paras 41–44):
(a)he vehemently denies hurting his estrange wife or being involved in any physical violence;
(b)there is no evidence of police being called to their family home or evidence of his estrange wife presenting to a medical facility with injuries or claims of violence;
(c)he did not contest any restraining order because his estrange wife was mentally unstable, and having regard to his sons, “would go to great lengths to keep the peace”. The Applicant further states that the Detected Incidents Reports at G4/14, 17 and 23 support this submission; and
(d)he has been friends with his current partner for over seven years and they have been in a relationship since February 2017. His partner describes him “as patient and kind and the antithesis of violent”.
In its consideration, the Tribunal has regard to the following:
(a)On 24 January 2016, between 10.00PM and 11.00PM, the Applicant’s estrange wife attended a police station and reported that when she had woken the Applicant to discuss a message on his mobile phone, he had become aggressive, pushed her and grabbed her around the throat. The relevant Detected Incidents Report (DIR) records that she appeared confused, declined to make a statement and did not want the police to speak to the Applicant (SG4/14).
(b)On 1 October 2017, between 8.00PM and 9.00PM, the Applicant’s estrange wife attended a police station wanting to obtain a FVRO against the Applicant, her brother and her brother’s wife. The DIR records that the Applicant’s estrange wife was not frightened and advised that she was on anti-depressant medication and was seeing a counsellor for anger management issues. The DIR author recorded that the DIR was made for the purpose of helping the Applicant’s estrange wife and ensuring a safe environment for the children (SG4/23).
(c)On 21 February 2018, the Applicant’s estrange wife applied for a FVRO on the grounds of emotional abuse. The application was dismissed on 23 February 2018 (Exhibit A20).
(d)On 22 February 2018 at 3.55PM, the Applicant’s estrange wife called the police because she did not want the Applicant seeing their sons at the house and when she denied him access, he stated knocking on the door and would not leave the premises. The relevant DIR records that police attended the Applicant estrange wife’s house, there were no allegations of offences from either party, the incident was only a verbal argument over visiting the children who were seen to be in good spirits. The DIR also records that the Applicant was issued with a police order for 24 hours to give the family unit some space and to keep the Applicant away until after the FVRO hearing scheduled for the following day (SG4/29).
(e)On 26 February 2018, an interim FVRO was made by the Magistrates Court binding the Applicant, with the Applicant’s estrange wife shown as the applicant for the order (Exhibit A19). There is no evidence before the Tribunal as to the grounds for the application or whether a final FVRO was made subsequently. In closing submissions pertaining to this interim FVRO, Mr McKenna submitted that: “[i]f there is no evidence the Tribunal can’t make any findings in respect of a particular matter” (Transcript/142).
(j)On 5 November 2018 at 4.00PM, the Applicant attended a police station to clarify whether a FVRO was still in place as a court official earlier that day had advised the Applicant that he is no longer subjected to any conditions. The relevant DIR records that “this was an error on courts part as according to police systems the VRO was active and valid.” (SG4/17).
(k)On 6 November 2018, police attended the school attended by the Applicant’s elder son. The Applicant’s estrange wife had called police because the Applicant had arrived from Perth to see his children and intended to take his son out for the day. The relevant DIR records that police explained to the Applicant’s estrange wife that there was no court order or FVRO in place relating to the child and that the child was happy to go with his father. The DIR records that the parties reached an agreement regarding the Applicant seeing their son, and that no breach of the extant FVRO was alleged or detected (SG4/8).
(l)Having regard to the above, the Tribunal finds it difficult to identify independent and authoritative evidence of family violence as required by paragraph 8.2(2)(b) of Direction 90, apart from the issue of the FVRO on 26 February 2018. Further, there is no evidence of the behaviours detailed at paragraph 4(1) of Direction 90; no evidence of the basis on which the FVRO was made; no evidence of breaches of the FVRO; no direct evidence from the Applicant’s estrange wife; and no evidence that the Applicant was afforded procedural fairness in relation to the making and continued effect of that order.
(m)Furthermore, the Applicant does not have any charges or convictions for family violence offences (see Court History – Criminal and Traffic at SG2/2–6), and there is no material before the Tribunal to indicate any pattern of family violence behaviour or concerns in the Applicant’s relationship with his current partner or in his interactions with her extended family. The only pattern evident to the Tribunal was that of the Applicant’s estranged wife calling or visiting the police station.
Tribunal’s conclusion on the secondary primary consideration
The Tribunal agrees with the Respondent that this second primary consideration is a vexed one for the Tribunal. The Tribunal, of course, takes the issue of family violence extremely seriously and Direction 90 obligates the Tribunal to have regard to any such conduct in considering whether there is another reason why the Cancellation Decision should be revoked. While the Tribunal can draw an inference from the making of a FVRO that the Applicant engaged in family violence, it is unable to conclude whether there was any physical violence involved or that the behaviour was at the higher end of the family violence scale or that the Applicant’s conduct constituted serious family violence.
As noted above, paragraph 8.2(1) of Direction 90 specifically states that the Government’s serious concerns regarding non-citizens who engage in family violence having the privilege of remaining in Australia are proportionate to the seriousness of the family violence involved. Therefore, the Tribunal assigns a neutral weight to this nevertheless important primary consideration.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction 90)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about 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.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
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;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
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, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In the material before the Tribunal, the Applicant identified two children with his estranged wife, his stepdaughter being the daughter of his present partner, and three cousins of the stepdaughter as minor children in Australia whose best interests the Tribunal should consider.
The Respondent accepts that the best interests of those children would lie with the Applicant remaining in Australia, however, contends that the best interests of the three cousins should be given less weight due to the Applicant’s non-parental relationship (Exhibit R1, para 51). The Respondent also accepts that the Tribunal is likely to give this primary consideration some weight, although contending “that in the final balancing and consideration of all relevant matters, it is outweighed by the other primary considerations” (Exhibit R1, para 52).
Applicant’s sons
The Applicant’s sons were born in 2009 and 2014. There is no material before the Tribunal to indicate that their individual interests may differ and consequently the Tribunal considers them together.
The Applicant’s SOFIC contains only a brief submission regarding his sons (Exhibit A24, para 47):
The applicant has two biological sons who are very young and live in … with their mother. The uncle to the boys (mother’s brother) has provided a Witness Statement in support of the applicant, he has been a key person in the difficult incidents within the relationship and has attested that the family will support the applicant to have increased care responsibilities with his sons.
In the Personal Circumstances Form, dated 24 March 2021, the Applicant states that while he was with his estrange wife, he was inseparable from his sons, was a good role model and provided for them. He also submits that the children need him as a positive role model, and that non-revocation of the Cancellation Decision would be destructive to their mental health (G7/55). Further, the Applicant representative’s submission to the National Character Consideration Centre, dated 28 March 2021, contends that the Applicant’s departure would impact his children “in both a personal and cultural manner, as the boys are both Mouri and the only link to their heritage is through their father” (G9/82).
During his oral evidence the Applicant told the Tribunal that he last lived with his sons in September 2017; that he has had no contact with them since 2019; and that he last spoke with their mother on 9 November 2019 (Transcript/78). There are no statements from the children or their mother as to their views on what effect the non-revocation of the Cancellation Decision might have on the best interests of the children.
There is no evidence before the Tribunal that sub paragraphs 8.3 (c), (g) or (h) of Direction 90 are relevant to the consideration of the best interests of the Applicant’s children.
The Tribunal accepts that despite the Applicant’s recent lack of contact with his sons and involvement in their lives, he is sincere in his desire to have a meaningful relationship with them in the future, be a father to them and be included in their lives. However, the Applicant was unclear at this time as to how he would renew the relationship with his children. Even with the uncertainty and paucity of information, the Tribunal reaches the same conclusion as the Respondent that “…the best interests of the Applicant’s biological children must lie with revocation” (Transcript/153).
Applicant’s stepdaughter
It is clear from the evidence that the Applicant has a significant role in the life of his partner’s only child. Their relationship spans the period of four and a half years, however the Applicant has been incarcerated since 10 February 2021. In her Statutory Declaration, dated 22 March 2021, Ms Clark stated in relation to her daughter that: “Hayden has been a wonderful and kind support to the whole family, but particularly my 13-year old daughter, the care and concern and constant assistance he provides her has been invaluable this last 3 years” (G10/84).
In her oral evidence, Ms Clark said that the Applicant was “the best thing that’s… happened to me and my daughter”, and that the bond between her daughter and the Applicant was “unbelievable” (Transcript/103). Ms Clark further told the Tribunal that her daughter would not be able to relocate to New Zealand, should the Applicant be removed from Australia, and as a consequence she herself would not be able to move and leave her daughter with family in Australia (Transcript/105).
The Applicant’s stepdaughter confirmed her written statement, dated 8 March 2021, before the Tribunal, in which she stated that “[i]f my Dad where to be deported I would Lose my self” (G15/94). She told the Tribunal that she could not say one bad thing about the Applicant (Transcript/130).
The evidence is that the Applicant plays a parental role in his relationship with his stepdaughter, but she also enjoys a strong family network and has a very good relationship with her biological father. In his statement, dated 13 December 2021, Mr Steven Drage, stepdaughter’s biological father, stated (Exhibit A3, paras 5–6):
I believe Hayden is a good stepfather…, she speaks of him fondly, he teaches her the guitar, she has told me she trusts and values him. This is comforting to me as her father, to know she is supported.
I believe Krystol is a better mother for having Hayden in her life and that this is of benefit to [stepdaughter]. I witness Krystol living a pro social drug free life, building close relationships with her family and has a relaxed, organised and productive routine which benefits [stepdaughter].
In the same statement, Mr Drage expressed his support for the revocation of the Cancellation Decision, and made it clear that he would not support his daughter relocating to New Zealand (Exhibit A3, paras 7–11).
As the Tribunal has found with respect to the Applicant’s biological children, there is no evidence before the Tribunal in relation to the stepdaughter that sub paragraphs 8.3 (c), (g) or (h) of Direction 90 are relevant considerations here.
The Tribunal finds that the best interests of the Applicant’s stepdaughter strongly favour revocation of the Cancellation Decision.
Applicant’s nieces and nephew
The Applicant has two nieces (born 2008 and 2009) and a nephew (born 2013), being the children of his partner’s brother. The Applicant submits that he “plays a prominent role in the lives of these children” (Exhibit A24, para 49).
The children live with their mother next door to the residence of the Applicant and his partner. Both parents have provided Statutory Declarations confirming the important role the Applicant plays in their children’s lives (G13/91, G14/92–93). In a statement, dated 15 March 2021, the older niece describes the support and assistance that the Applicant has provided to the family (G16/96).
As required by paragraph 8.3(3) of Direction 90, the Tribunal considers the nieces and nephew separately from the minor children considered above. In the case of the nieces and nephew, the Applicant provides care and support, but he does not have daily control or parental responsibility. In her Statutory Declaration, dated 22 March 2021, Ms Clark attests that the Applicant “is particularly close to my nieces and nephew” and gives an example whereby the Applicant provided emotional support to the older niece (G1/84–85). Apart from this example, there is little evidence to indicate that the best interests of these three children might differ and warrant further individual consideration.
The Respondent opined that the Applicant provides “a supporting, sort of, uncle” role with respect to these three children, and contended that it could not be afforded much weight (Transcript/154). While the Tribunal generally agrees with that opinion, it finds that it would be in the best interests of the nieces and nephew for the Cancellation Decision to be revoked.
Tribunal’s conclusion on third primary consideration
Taking into account all of the considerations listed in paragraph 8.3 of Direction 90 and having carefully balanced the evidence before it, it is the Tribunal’s finding that the best interests of the six identified children, particularly the Applicants two sons and stepdaughter, would be served by the Applicant being allowed to remain in Australia. This third primary consideration weighs in favour of revocation of the Cancellation Decision. Significant weight is given to this consideration.
Fourth primary consideration: Expectations of the Australian community (paras 8(4) and 8.4 of Direction 90)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) 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.
(2) In addition ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
As noted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208, Senior Member Morris summarises the view of the Full Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143 (FYBR), and some of the language was also adopted in the drafting of Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed – they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the court in FYBR…
It follows that the Tribunal must give effect to the “norm” stipulated in paragraph 8.4(1) of Direction 90, that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will in most cases weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. That said, the Tribunal has regard to the helpful comment by Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424, to the effect:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Respondent submits that (Exhibit R1, para 55):
…the Direction specifies that people who have breached the Australian community’s trust, or where there is an unacceptable risk that they will breach that trust, should expect to have their visas cancelled and forfeit the privilege of remaining in this country. As noted by the Full Court in FYBR, this is effectively a deeming provision and the Tribunal should find that the expectations of the Australian community lie with the applicant’s visa remaining cancelled. There certainly can be no basis for the Tribunal to find that this consideration “weighs heavily in favour of revocation” as asserted by the applicant.
(Footnote removed.)
The Applicant contends in relation to this primary consideration, that he has “demonstrated his positive rehabilitation and contribution to Australian society” (Exhibit A24, para 61) and that this consideration weighs heavily in favour of revocation of the Cancellation Decision. This contention is based on the following (Exhibit A24, paras 55–60):
(a)the Applicant has never been involved in family violence;
(b)the Applicant has deep and committed relationships in Australia and provides invaluable support to his partner’s family;
(c)he has been a model prisoner and provided assistance to a cellmate thus saving his life; and
(d)the Applicant was involved in a traffic accident on 15 September 2019 and was commended by the attending police for the assistance he provided to 30 people.
In his statement, dated 13 December 2021, Mr Drage, the father of the Applicant’s stepdaughter, supports the revocation of the Cancellation Decision and expresses his belief “that the expectations of the Australian community are the same as mine when viewed subjectively” (Exhibit A3).
The Tribunal views the Applicant’s contention and Mr Drage’s belief as stated in the preceding paragraphs to be inconsistent with the terms of Direction 90 and the decision of the Full Court of the Federal Court in FYBR, however has note of them in the weighing exercise described by Member Burford above.
The Applicant arrived in Australia at the age of three. Consequently, the Tribunal has regard to the principle contained in paragraph 5.2(4) of Direction 90, which provides that the community would afford a higher degree of tolerance to those who have lived in Australia their whole life or from a young age, as in the Applicant’s case. At the same time, the Tribunal must also take into account the principles in paragraph 5.2 of the Direction 90, that the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes, and that non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
Given that the Applicant has engaged in serious criminal offences contrary to the expectation that he will obey laws whilst in Australia, and the application of the “norm” this primary consideration must weigh against revocation of the Cancellation Decision. The Respondent submits that this consideration should be given significant weight (Exhibit R1, para 57). However, given factors such as the Applicant’s long residence in Australia, his support network, the fact that his major offences did not involve him personally committing violent acts and nor did they involve any of the conduct prescribed in sub-paragraphs 8.4(2)(b) to (f) of Direction 90, a medium weight should be assigned to this primary consideration.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION 90)
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section ... 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
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
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction 90)
A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 9.1(2) of Direction 90 requires decision-makers to “carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct”.
The representation made in the Applicant’s SOFIC that because the father of his stepdaughter would unequivocally oppose her relocation to New Zealand, “it would be unsustainable for the applicant’s relationship to continue” if he were to be removed to New Zealand does not amount to a non-refoulement obligation in accordance with the tests enunciated in the Act (Exhibit A24, para 62). Neither party made any further submissions on this consideration.
The Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant, and that this is not a relevant consideration in this matter.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction 90)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Respondent concedes that the Applicant is likely to experience some hardship should he be returned to New Zealand, and “accepts that this is a factor that weighs in support of revocation” (Exhibit R1, para 63).
The Applicant’s SOFIC detailed the following as impediments to the Applicant’s return to New Zealand (Exhibit A24, paras 64–66):
(a)the Applicant would not be able to access rehabilitation services and would be without the love and support of his family;
(b)the Applicant’s arrival in Australia at the age of three and the absence of relationships in New Zealand will pose cultural barriers and infringe on employment and social support; and
(c)the Applicant’s partner and her daughter are unable to relocate and there are limited services available to him in New Zealand.
In relation to his New Zealand family, the Applicant told the Tribunal:
(a)his only family in Australia are his brother and sister who reside in Perth and have no contact with their parents (Transcript/73–74);
(b)his parents returned to New Zealand without advising him or his brother and sister, and he was unsure whether they were still together (Transcript/74);
(c)his last communication with his father was via text message in 2019 (Transcript/72); and
(d)he has a large number of uncles, aunties, cousins (Mr Gerrard estimated 128 relatives) in New Zealand who he might be able to contact but did not know them or their names (Transcript/73–75).
The Tribunal, and in the absence of submissions to the contrary, accepts the Respondent’s submission (Exhibit R1, para 61):
…that there are likely to be some transitional difficulties, but those impediments would by no means be insurmountable. New Zealand is a country which is broadly comparable to Australia in terms of language, culture and access to employment, health services, education and social security. The applicant is reasonably young and healthy and has experience in an occupation for which there is strong demand in New Zealand.
(Footnotes removed.)
The Tribunal in previous cases has recognised the existence of the organisation “People at Risk Solutions” (PARS) which provides assistance to persons who are removed from Australia to New Zealand. Relevantly, the Respondent notes the comments of the Tribunal in Re CFVG and Minister for Immigration and Border Protection [2017] AATA 1395 at [90]: “[t]he Tribunal also notes the considerable efforts of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its benefits to men like CFVG should not be underestimated” (Exhibit R1, para 62).
Overall, the Tribunal finds that the Applicant is likely to encounter some difficulty and hardship in establishing himself if he were to return to New Zealand, but these difficulties are not insurmountable. The Tribunal finds that consideration of the extent of impediments if removed, having regard to paragraph 9.2 of Direction 90, weighs in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction 90)
Paragraph 9.3 of Direction 90 provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence about the impact on specific victims, or on the community more generally aside from the risks of harm to the community discussed above in the context of the first primary consideration, the protection of the Australian community. Neither party identified this as a relevant consideration. Insofar as paragraph 9.3 of the Direction 90 requires consideration of the impact of the Applicant’s crime on victims, there is no material before the Tribunal upon which to base such consideration.
Links to the Australian Community (paras 9(1)(d) and 9.4 of Direction 90)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any 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.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Respondent accepts that the Applicant has reasonably strong ties to Australia, but contends that these ties should be viewed through a prism of a tenure “punctuated by persistent criminality, substance abuse and other anti-social behaviour” (Exhibit R1, para 65).
The Applicant submits that this consideration weighs heavily in favour of revoking the Cancellation Decision by reason of strong familial ties (Exhibit A24, para 72).
The Applicant has been residing in Australia since his arrival in 1987 with his mother and two siblings, only returning to New Zealand for a four week family reunion holiday when aged nine (Transcript/58). His partner, two children, brother and sister and his estranged wife reside here.
The Applicant undertook all his school education in Australia and subsequently gained trade certificates. He developed ties and contributed to the community as a Fly in Fly out (FIFO) worker for companies such as BHP and Rio Tinto in the period 2008 to 2015 (G9/82).
The Tribunal notes the statutory declarations, witness statements and oral evidence attesting the Applicant’s relationship with his partner and her extended family, and the positive, prosocial and supportive role he fills within the family. In her Statutory Declaration, dated 22 March 2021, Ms Brittain details that the Applicant supported her in handling personal issues including the death of her husband, and repaired her neighbour’s door after a break-in (G17/97).
In summary, the Applicant has close ties to the Australian community because he has been in Australia since early childhood and received all his schooling and trade qualifications here. Further, his partner, his children and his siblings reside in the Australian community. He has made some positive contributions to the Australian community through his FIFO employment and his assistance to others. Overall, the Tribunal finds that the consideration of the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant has an employment history in Australia, and submits that as a skilled plasterer his removal “will have a substantial impact on the economy of the State where we have a significant skill shortage for skilled labour” (Exhibit A24, para 75).
In her Statutory Declaration, dated 22 March 2021, and in her testimony before the Tribunal, Ms Brittain described the “massive help” the Applicant provided in establishing her workshop and business in 2020 (G17/97). Ms Brittain confirmed her offer of employment to the Applicant on his release from custody (Transcript/124).
However, there is no evidence that a decision not to revoke the Applicant’s visa cancellation and his removal from Australia would compromise the delivery of a major project or the delivery of an important service in Australia.
Taking the strength, nature and duration of ties and the impact on Australian business interests cumulatively, the Tribunal considers that the Applicant’s links to Australia weigh strongly in favour of revocation of the Cancellation Decision.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
In determining the weight to be assigned to each consideration, the Tribunal has taken into account all of the material before it, the Applicant’s personal circumstances, his offending history, and the requirements of Direction 90.
In relation to the first primary consideration, the protection of the Australian community, the Tribunal has found that the Applicant’s offending is serious, and although the likelihood of him reoffending might be reduced, the Australian community should not be expected to tolerate the harm that might result from the Applicant reoffending. This consideration weighs heavily against revocation of the Cancellation Decision.
In relation to the second primary consideration, whether the Applicant’s conduct constituted family violence, as stated in paragraph 71 above, the delegate found no evidence that the Applicant had engaged in family violence. Because the Tribunal is not satisfied that there was sufficient evidence of such engagement, this consideration does not weigh against revocation of the Cancellation Decision. It is, at best for the Applicant, a neutral consideration in the weighing exercise.
The assessment of the third primary consideration, the best interests of minor children in Australia encompassed the Applicant’s two children, his stepdaughter, nieces and nephew. For the reasons set out in paragraphs 82–98 and allowing that the best interests of the Applicant’s nieces and nephew attract less weight than his biological children and stepdaughter, the Tribunal has found that this consideration weighs heavily in favour of the revocation of the Cancellation Decision.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the Cancellation Decision. The weight given to this consideration is tempered by the considerations set out in paragraphs 105–107 above, and particularly the tolerance afforded to the Applicant because of his residence in Australia since the age of three. Moderate weight should be given to this primary consideration.
Turning to “other consideration”, the Tribunal found that the consideration of international non-refoulement obligations was not relevant in the Applicant’s case, and in the case of the impact on victims, there was no material before the Tribunal upon which to base an assessment. It follows that these considerations play no part in the weighing exercise.
The Tribunal found that the Applicant’s links to Australia, comprehending cumulatively the strength, nature and duration of ties and the impact on Australian business interests, to weigh strongly in favour of revocation of the Cancellation Decision. In its assessment of the extent of the impediments the Applicant would face if he were returned to New Zealand, the Tribunal noted the Respondent’s acceptance at paragraph 113 that this consideration weighs in favour of revocation of the Cancellation Decision. For the reasons set out at paragraph 116–118, moderate weight is given to this other consideration.
Having carefully weighed the considerations in favour of the revocation of the Cancellation Decision and the considerations against the revocation of the Cancellation Decision, the Tribunal finds that the considerations in favour of revocation outweigh those against revocation. Accordingly, the Tribunal finds that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside and substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant's Visa pursuant to s 501CA(4) of the Act be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 143 (one hundred and forty three) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member
..................[Sgd]......................................................
Associate
Dated: 2 February 2022
Date of hearing:
12 January 2022
Advocate for the Applicant:
Counsel for the Applicant:
Eve Watts, Inclusive Migration Australia
Dominic Mckenna
Counsel for the Respondent: Arran Gerrard, Australian Government Solicitors
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