TGZT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 2647

TGZT and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2647 (18 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4317
Re:TGZT
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Dr C Huntly
Date:18 August 2022
Place:Perth

The Reviewable Decision, being the decision of the Delegate dated 26 May 2022, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, pursuant to 501CA(4) of the Act 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].............................................................
Member Dr C Huntly
CATCHWORDS
MIGRATION – Migration Act s 501CA(4) – decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa – whether there is “another reason” to revoke the cancellation of the applicant’s visa – applicant a 32-year-old man who arrived in Australia as a six-year-old child – best interests of the children – stolen generations – extent of impediments if removed – strong links to the Australian community – there is another reason to revoke the mandatory cancellation of the applicant’s visa – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Bread Manufacturers of NSW v Evans (1981) 180 CLR 404
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
James and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2390
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326.
Lau and Minister for Immigration and Border Protection [2017] AATA 138
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Nigro v Secretary to the Department of Justice [2013] VSCA 213;
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143.
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953.
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
SCJD v Minister for Home Affairs [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545.
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tohiariki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1748
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
PNLB and Minister for Immigration and Border Protection [2018] AATA 162 [22].
SECONDARY MATERIALS
Minister for Immigration, Citizenship 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).
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
REASONS FOR DECISION
Member Dr C Huntly
18 August 2022
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 26 May 2022[1] not to revoke the cancellation of the Applicant's TY Subclass 444 Special Category (Temporary) visa (the Visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1]Exhibit R1, 14.
The Visa was cancelled under s 501(3A) of the Act on the basis that the Applicant did not pass the character test by reason of his substantial criminal record, and that he was serving a full-time term of imprisonment for an offence against a law of a State.
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 Minister made under s 501CA(4) of the Act.
On 8 July 2022, Senior Member Dr Evans-Bonner made a confidentiality order pursuant to sub-ss 35(2), (3) and (4) of the Act requiring this application to be heard in private.

This order also provided that the Applicant was to be referred to throughout proceedings by his pseudonym.
THE ISSUE FOR DETERMINATION
The issue for determination is whether the Tribunal should exercise the power under s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A) of the Act. This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he 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 32-year-old citizen of New Zealand who first arrived in Australia in 1996, when he was five years old.[2]
[2]Ibid 54.
The Applicant has a lengthy history of criminal offending, including traffic offences, extending back to 2008. Relevantly, between October and November 2020 he accrued convictions for seven separate offences.[3] The Applicant’s full criminal record is set out in the annexure to these reasons for decision.
[3]Ibid 53.
On 6 April 2021 and while serving a term of imprisonment for previous offences, the Applicant received a further 12-month sentence of immediate imprisonment in the Perth District Court, following a conviction on a plea of guilty for “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”.[4]
[4]Ibid 44–51.
On 27 April 2021 the Applicant’s visa was mandatorily cancelled by a delegate of the Minister.[5] On 8 May 2021 the Applicant made representations to the Minister seeking revocation of the cancellation decision.[6]
[5]Ibid 55.
[6]Ibid 68–85.
On 24 May 2022 a delegate of the Minster decided to not revoke the cancellation.[7] The Applicant was notified of this decision on 26 May 2022.
[7]Ibid 10–28.
The Applicant lodged an application for review of the delegate’s decision with the Tribunal on 30 May 2022,[8] which is within the time prescribed by s 500(6B) of the Act.
[8]Ibid 4–9.
THE HEARING AND THE EVIDENCE
The Applicant is currently detained at Yongah Hill Detention Centre in Western Australia and appeared before the Tribunal in person on 4 August 2022. The Applicant was self-represented. The Respondent was represented by Mr A Burgess of Sparke Helmore Lawyers, who appeared in person. The following witnesses gave evidence at the hearing:
(a)the Applicant;
(b)the Applicant’s mother;
(c)the Applicant’s partner; and
(d)a caseworker from the Department of Communities.
The following documents were admitted into evidence:
(a)the Minister’s statement of reasons dated 26 May 2022 (EA1);
(b)the Applicant’s submissions and supporting documents filed 27 July 2022 (EA2);
(c)the Respondent’s section 37 G-Documents, filed 13 June 2022 (ER1);
(d)the Respondent’s Tender Bundle volume 1, filed 13 July 2022 (ER2); and
(e)the Respondent’s Tender Bundle volume 2, filed 1 August 2022 (ER3).
Applicant’s history of offending
As indicated above, the Applicant’s offending history in Australia began in October 2008, when he was charged with “drive unroadworthy vehicle (serviceable)”, and “no authority to drive”. He pled guilty to those charges in the Midland Magistrates Court on 28 January 2009.[9]
[9]ER2 pp 364, 485, 489.
In summary form, the Applicant’s history of convicted offending is:[10]
[10]Ibid, pp 359–364.
(f)Nineteen (19) driving-related offences (despite never having held a valid driver’s licence), comprised of:
(i)nine (9) offences for ‘no authority to drive’;
(ii)two (2) offences of ‘driver fail to report property damage’;
(iii)four (4) offences of ‘driver failed to stop’;
(iv)two (2) offences of ‘aggravated reckless driving pursuit’;
(v)one (1) offence of ‘drove vehicle with false plates’; and
(vi)one (1) offence of ‘drive unroadworthy vehicle’;
(g)five (5) offences for breaching court-mandated orders;
(h)five (5) drug-related offences, including the conviction which resulted in the reviewable decision;
(i)four (4) offences of ‘steal motor vehicle’; and
(j)six (6) other offences, comprising of:
(i)        three (3) offences of ‘possession of stolen or unlawfully obtained property’;
(ii)       one (1) offence of ‘receiving’;
(iii)      one (1) offence of ‘unlicenced person possess firearm/ammunition’; and
(iv)      one (1) ‘offence of ‘without lawful excuse trespassed on a place’.
In addition to attracting sentences totalling 96 months in Community Based Orders, Suspended Imprisonment Orders, and separate miscellaneous terms of imprisonment (many of which were concurrently served) since 2008,[11] the Applicant also received associated fines of $18,912.65 (mostly for motor-vehicle-related offending).[12]
[11]Exhibit ER2 pp 359–366.
[12]ER2 pp 446–448.
As indicated above, while serving his most recent term of imprisonment, the Applicant’s visa was mandatorily cancelled by a delegate of the Minister on character grounds, pursuant to s 501(3A) of the Act. The delegate subsequently refused to exercise the discretion to revoke the mandatory cancellation after weighing the considerations at s 501CA(4) of the Act.[13]
[13]ER1/G3.
LEGAL FRAMEWORK
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.
(emphasis added.)
Ministerial 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).[14] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[15]
[14]Minister for Immigration, Citizenship 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).
[15]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
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 character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a 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.
(emphasis added.)
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. 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.
(emphasis added.)
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.
(emphasis added)
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.
(emphasis added)
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[16] The character test is defined in s 501(6) of the Act (see [18] 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 [19] above) 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) 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” (see [20] above). As noted in [8] above, by reference to s 501(6)(a) of the Act, the Applicant’s does not pass the character test by operation of law.
[16](2009) 106 ALD 66.

As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [21] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
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.
(emphasis added.)
Nature and seriousness of the conduct (para 8.1.1 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).
(emphasis added).
With respect to the Applicant’s history of offending behaviour, the Respondent’s submissions were as follows:[17]
[17]Respondent SOFIC [25].
a)In relation to offending related to the possession of drugs with intent to sell or supply, the “devastation” that methylamphetamine inflicts on the community is “well documented”.[18]
[18]Citing Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138 [46] and SCJD and Minister for Home Affairs [2018] AATA 4020 [81]–[83].
b)Regard must also be had to the fact that the applicant has been sentenced to terms of imprisonment for his offending (paragraph 8.1.1(1)(d) of Direction 90). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy[19] ... Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
[19]Citing PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 [22].
c)In relation to the April 2021 offence for possession of a prohibited drug with intent to sell or supply (methylamphetamine) the sentencing judge stated:
‘Now, there’s basically two factors which demonstrate the seriousness of your offending. The first is the weight, which is 4.38 grams, and the weight’s important because it’s indicative of the amount of harm that can be done if it’s distributed into the community.
The second is that there was an element of commerciality and persistence in your offending. This is seen from the messages found on your mobile phone and tablets, the indicia of drug dealing found in your possession at the time and your statements that you were dealing to fund your own addiction which had been longstanding.’ …
‘there is an element of seriousness in the fact that your house where this drug bust took place was across the road from a primary school and that has an inevitable risk of attracting people to the vicinity of a primary school who we don’t want attracted to the vicinities of a primary school.’[20]
[20]Citing G7/46.
d)The applicant committed the April 2021 offence for possession of a prohibited drug with intent to sell or supply (methylamphetamine) while he was on bail for other offences.[21]
[21]Citing G7/47.
e)The applicant was involved in ‘selling or supplying prohibited drugs for commercial purpose’.[22]
[22]Citing G7/46.
f)The applicant has frequently offended since 2009 and his offending has escalated in seriousness.[23]
g)The applicant has been involved in multiple driving offences and repeatedly committed the same offences including no authority to drive, driver failed to stop (circumstances of aggravation), aggravated reckless driving pursuit, stealing motor vehicle and drives or assumes control without consent (G4). When viewed as a whole, the applicant’s history of driving offences evidences a serious pattern of ongoing disregard for the laws of Australia and accepted community values.[24]
h)In respect of the October 2020 aggravated reckless driving pursuit offence, the sentencing judge stated:
… the most serious offence with which I am dealing is in fact the reckless driving to avoid pursuit by police. This was a pursuit that went through three suburbs, Balgany – Balga, I beg your pardon, Koondoola and Alexander Heights. The pursuit lasted for approximately four minutes before the police decided to terminate the pursuit.
You reached speeds of 150 kilometres per hour in numerous build-up residential areas. At times your headlights were turned off, at times you travelled on the incorrect side of the road at high speed, including through a roundabout. Your driving was so reckless in fact that
the police were forced to terminate the pursuit which allowed the Police Air Wing to observe the vehicle that you were driving from then on.[25]
i)The applicant has repeatedly committed the same offences including unlicensed driving and been involved in reckless driving with multiple high speed pursuits. The Tribunal should take into account the cumulative effect of the applicant’s repeated offending.[26]
[23]Citing Direction 90 para 8.1.1(1)(d).
[24]Citing Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326.
[25]Citing G6/37.
[26]Direction 90 para 8.1.1(1)(e).
Even assuming that the Applicant’s offending behaviour extends no further than those artefacts of charges and convictions captured in the relevant police and court records, the nature and seriousness of the Applicant’s offending behaviour is obvious. Further, such conduct over such a lengthy period of time is clearly inimical to the privilege of residing in or holding a visa of any category to enter or remain in Australia. It also fails to meet the expectations of the Australian community relating to the conduct and character of those persons who may enjoy the benefit of such a privilege. This is demonstrated by the fact that, in response to such offending behaviour, cancellation of the Applicant’s visa is made mandatory by the text of s 501(3A) of the Act.
Direction 90 requires the decision-maker to consider “the nature and seriousness of the non-citizen’s conduct to date” in the context of the protection of the Australian community from criminal or other serious conduct. A mandatory visa cancellation due to an Applicant’s substantial criminal record, therefore, creates a certain amount of circularity in the consideration requirements at paragraph 8.1.1. Nevertheless, I find that the Applicant’s history of offending conduct has been frequent and is characterised by a trend of increasing seriousness within the contemplation of paragraph 8.1.1(1)(d) of Direction 90.
I further find that the cumulative effect of the Applicant’s history of offending conduct described above is a significant relevant consideration requiring particular attention in this case, given the requirement at paragraph 8.1.1(1)(e) of Direction 90. In referring to this requirement, I particularly note that the Applicant has served three separate terms of imprisonment over the course of his offending, the first two of which did not deter him from his subsequent criminal offending.
Risk to the Australian community should the Applicant re-offend (para 8.1.2 of Direction 90)
In summary, the Minister’s submissions in relation to the risk posed to the Australian community by the Applicant’s offending were:[27]
[27]Respondent SOFIC [28]-[32].
28. In the present matter, the Minister submits that the nature of the harm that would be caused if the applicant were to reoffend is very serious and is likely to involve significant physical, psychological and financial harm to members of the Australian community such that the Australian community would have little tolerance for any likelihood of reoffending and future harm.
29. Further drug related offending should also be seen as having the ability to inflict a broad range of harm upon the Australian community. Those harms include physical harm, mental illness, violence, chronic health issues, and loss of productivity and engagement with the criminal justice system, all of which are serious and have significant cost to the broader community. As was acknowledged in the Commonwealth Department of Prime Minister and Cabinet’s 2015 Final Report of the National Ice Taskforce,[28] methylamphetamine (also known as “ice”) creates a “distinct problem for society” because:
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
30. The Department of Health National Drug Strategy 2017-2026 also identifies “Health Harms”, “Social Harms” and “Economic Harms”.
31. The applicant has also been convicted of serious driving offences on multiple occasions and the harm that could flow if the applicant were to re-offend in a similar manner include ‘serious physical harm and/or death’ as noted by Senior Member Poljak.[29]
32. The applicant has indicated that his ‘drug habit’ was ‘the main factor in [his] behaviour’.[30] It is the Minister’s position that there is insufficient evidence to support a conclusion that the applicant has rehabilitated. The Tribunal should instead conclude that the risk of further offending by the applicant is significant and unacceptable. …
[28]Citing Tohiariki v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1748.
[29]Citing Kohli v Minister for Immigration and Border Protection (Migration) [2017] AATA 1326.
[30]Citing G13/81.
During the hearing on 4 August 2022, I took the Applicant to his submissions in order to explore his insight into his offending conduct over time:
MEMBER:Your childhood; you came here at the age of six. Do you have much memory of New Zealand?
TGZT:Not at all, not from when I was a child there. I have returned to New Zealand twice on holidays, roughly three weeks at a time.
MEMBER:And how would you describe your childhood?
TGZT:From what I can remember it was a good childhood. My parents provided everything we needed.
MEMBER:     Happy home?
TGZT:           Happy home, yes, no domestic violence, no, nothing like that.
MEMBER:     Parents continuously in employment?
TGZT:           Yes. My mum’s not now because she’s caring for my children but, yes.
MEMBER:     Do they have qualifications?
TGZT:           My mum is a registered nurse, she used to work for an old folk home, or old aged care, and my dad, he - -
MEMBER:     I think it’s just called aged care these days?
TGZT:           Sorry, aged care.
…
TGZT:           Yes, and my dad, I know he does have quite a list of qualifications, like mechanical fitter, he’s working in the mines, he’s got a whole list of qualifications, I don’t know.
MEMBER:     What does he do now at the moment, FIFO?
TGZT:           He’s working FIFO.
…
MEMBER:     That’s fine. I understand you lost your sister?
TGZT:           Yes, I did.
MEMBER:     Which sister was this?
TGZT: [Sister’s name].
MEMBER:     Condolences about that. This was a surprise to the family?
TGZT:           Yes.
MEMBER:     You were given permission to attend the funeral?
TGZT:           Yes.
MEMBER:     I understand she was part of your children’s life at one stage, is that right?
TGZT:           Yes, correct.
MEMBER:     This would’ve affected the whole family?
TGZT:           Pardon?
MEMBER:     This loss would’ve affected the whole family?
TGZT:           Yes, greatly.
MEMBER:     Was she in employment?
TGZT:           No, not at the time, no.
MEMBER:     Did she train in an occupation?
TGZT:           She was a receptionist.
MEMBER:     And you have another sister?
TGZT:           No, not a sister, just a brother that’s in New Zealand.
MEMBER:     And your brother, he completed high school?
TGZT:I think he completed year 10 and then started an electrician’s apprenticeship.
MEMBER:     And you’ve completed year 11, yes?
TGZT:           Yes, completed year 11, yes.
MEMBER:     And then pastry chef?
TGZT:           Pastry chef
MEMBER: ... Your journey through school, any problems getting through school?
TGZT:           No.
MEMBER:     One school?
TGZT:           Yes, one school, one high school.
MEMBER:     Parents took you to sport and all of that sort of stuff?
TGZT:           I used to play soccer when I was in primary school but I never really got into sports when I was at high school.
MEMBER:     But you never doubted the support you had from your parents?
TGZT:           No, not at all.
MEMBER:     You had the benefit of a fairly stable and happy home?
TGZT:           Yes.
MEMBER:     Obviously loving relationships with your siblings?
TGZT:           Yes.
MEMBER:     Good schooling?
TGZT:           Yes.
MEMBER:     And a start in life in your occupations?
TGZT:           Yes.
MEMBER:     At some point - who was first to get into the meth’ scene, was it your brother or yourself?
TGZT:           I’d say probably myself.
MEMBER:     And how did you become introduced to that scene; I’m not asking specifics, just?
TGZT:           The wrong crowd of people that I met.
MEMBER:     Through work or?
TGZT:           No, it wasn’t, it was actually when I caught up with a couple of high school friends they had different mates that they introduced me to, you know, and then it just spiralled from there.
MEMBER:     Was [your partner] part of that scene that you became a part of?
TGZT:           No.
MEMBER:     Did she become acquainted with the meth’ scene before or after you met her?
TGZT:           Before.
MEMBER:     How would you say that your life has moved from those stable and happy times as a school child into your adulthood?
TGZT:           I feel that my life turned into a big mess.
MEMBER:     An objective person might say someone from a fairly stable and secure home life who can—even today—rely on the support of their parents, despite everything else, has had a lot of advantages along the way?
TGZT:           Yes, I believe that.
MEMBER:     Now I would like to take you to your bundle of documents which I’ve taken some care to read, which—I have to say your submissions are helpful, thoughtful and sober, and to some extent sobering.[31]
[31]See EA2.
TGZT:           Yes.
MEMBER:     And so I appreciate the care and attention with which you’ve put these documents together. The first thing I’d like to do is to take you to the very first page of the document where you say:
I am lucky to have a good and loving family and they have managed to step up during this ideal.
I guess they’ve had to, haven’t they?
TGZT:           Yes, they didn’t really have a choice.
MEMBER:     …
[I am a] son, fiancée and foremost a father of four lovely children.
At this stage my own actions have been selfish and have put the lives of my kids in disarray.
TGZT:           Yes.
MEMBER: I think your statement is actually quite candid and it demonstrates a degree of remorse and self-reflection, which I do take note of.
TGZT:           Yes.
MEMBER:     I note that you draw my attention in particular to the Aboriginality of your children …
TGZT:           Yes.
MEMBER:     … or indigeneity as I think the phrase is now, and you took some care to draw my attention to the report of the “Australian Institute of Health and Welfare on the Aboriginal and Torres Strait Islander stolen generations and descendants, number, demographic characteristics and select outcomes”.
TGZT:           Yes.
MEMBER: Which is dated 2018. Chapter 3 of that document, page 27. I note under “Health and socioeconomic outcomes of the stolen generations proxy population” the analysis is summarised.

The second dot point says:
Among those in the stolen generations’ proxy population more than half, 52 per cent, have been charged at least once by the police. More than half 52 per cent also reported having self assessed health. 42 per cent had experienced homelessness at least once in their lifetime.
Have you been homeless in your lifetime, slept rough?
TGZT:           Yes, not for long, but I have, yes, and that was just when I left my parents’ house at my own will, you know. I was never kicked out, I just never returned home.
MEMBER:     …
And 20 per cent in the last 10 years; 26 per cent reported being a victim of actual threatened physical violence in the last 12 months and 22 per cent have been incarcerated at least once in their life.
That’s one in five.
TGZT:           … Yes …
MEMBER:     …
Incarcerated at least once in their lifetime, and 4 per cent [one in 20], were incarcerated in the last five years. Two thirds of the stolen generations’ proxy population reported that they lived with disability or restricted long-term condition.
I’m also struck by some of the observations in this report at page 70, Chapter 5, where the proxy population is examined from the perspective of the effects of being removed and being a descendant.
Compared with the reference group the large significant effects of removal were estimated to be 3.3 times as likely to have been incarcerated in the last five years, 2.2 times as likely to have ever been formally charged by police, two times as likely to have been arrested in the last five years, 1.8 times as likely to have government payments as their main income source, 1.7 times as likely to have experienced actual threat and physical violence in the previous 12 months, 1.7 times as likely not to be a home owner. The effect of being removed also significantly impacted upon having poor self-assessed health, poor health, using a composite measure, poor mental health, not being employed, having experienced homelessness and having experienced discrimination in the past 12 months. Statistically significant effects of removal were also seen in the estimated results after two survey periods.
It’s grim reading if you choose to read it and think about it.
TGZT:           Yes.
MEMBER:     These are the effects on indigenous people of being removed from their parents. It strikes me as I read this report, which you were kind enough to draw to my attention, that your children have been removed from their parents.
TGZT:           Yes.
MEMBER:     And have been so for their own care and protection.
TGZT:           Yes.
MEMBER:     Because of the actions of yourself and your partner.
TGZT:           Yes.
MEMBER:     Unlike many of the stolen generations they’ve had the benefit, at least three of your children had the benefit of being placed with their paternal grandparents.
TGZT:           Yes.
MEMBER:     A number of these adverse outcomes, life outcomes, you’ve experienced.
TGZT:           Yes.
MEMBER:     Being charged, being incarcerated.
TGZT:           Yes.
MEMBER:     And one can expect throughout your life, having been an incarcerated person, likely to experience ongoing discrimination for that reason.
TGZT:           Yes.
MEMBER:     I want to put to you an observation; you experienced those things having had the benefit of a stable, protective and happy home life.
TGZT:           Yes.
MEMBER:     Turning to the Tender Bundle, page 548, this is the page that I said I was going to return to again. (ER3).
TGZT:           Five forty eight?
MEMBER:     Five forty eight.
TGZT:           Yes.
MEMBER:     This is an affidavit of a child protection worker, Ms [Name], at paragraph 15. I’m just going to read this into the transcript:
Drugs and smoking pipes have been located on the floor and on top of the bed. The carport also appeared to be an area used for drug activity with cannabis and a smoking implement being found there. [S], [L] and [M] were present upon execution of the warrant and appeared to have free range access to the whole property.
Police also noted clothes and rubbish throughout the home, dirty dishes and rubbish in the kitchen; most of the doors were not attached and leaning loose against the wall. There were open holes in the ceiling and wall cavities where electricity had been bypassed. This had been made safe by Western Power but the wires were clearly visible.
Outside there was a small aboveground pool which was not secured by fence, and dog faeces in the garden. There was food in the home and the children appeared to be in good health although dishevelled. [the Applicant’s partner] was noted to be pregnant.
This description, would that be a description that could ever have been applied to the home you grew up in?
TGZT:           No.
MEMBER:     So it sort of normalises for your children a fairly challenging set of circumstances, doesn’t it?
TGZT:           Yes.
MEMBER:     …
As a result of the referral the family engaged with the Department [of Communities] to address the concerns and were referred for intensive family support which raised concerns regarding the poor home condition safety hazards and parental drug use. Pre-birth planning is also planned to commence in relation to the youngest born baby N.
On 12 June 2020 S was found outside the home in the rain at 1 am. The police went to the front door, it was open by L who told police their mother was asleep. Police saw [Applicant’s partner] asleep on a mattress in the front room. She was woken by police and spoken to about safety concerns and the Department became involved.
I notice that that’s not the end of the story with the family.

The Department has devoted a considerable amount of resources towards the prospect of bringing about reunification with the family.
TGZT:           Yes.
MEMBER:There’s every suggestion in the documents I’ve read that you have engaged with an open mind and open heart in that process, and that your family has been supportive of that. So that’s all for the best. But I reflect on those reports of the stolen generations, the effect of removal from parents.
TGZT:           Yes.
MEMBER:     It’s well documented. I reflect on the fact that your children have been removed.
TGZT:           Yes.
MEMBER:If past experience can be a predictor of future outcomes, the future doesn’t look good for them.
TGZT:           Yes.
MEMBER:     There are two hopes for your children; one is the Department of Communities. I think it’s a fairly slender hope; but balanced against that is the hope that you and your partner present to your children. Based on the evidence I’ve seen it’s a slender hope as well, because addiction’s a tricky thing.
TGZT:           Yes.
MEMBER:     I don’t have a punchline here, these are things that I’ve noticed in the documents you’ve provided and in the documents that the Respondent has provided. Is there anything you’d like to say in response to my rambling narrative?
TGZT:           To do with the paperwork with the stolen generation; I was referring as long-term effects. I understand that, yes, my children have been taken away from me in the past, but as a long-term thing, I mean …
MEMBER:     … Communities is going to be a part of your life for some time to come, and theirs …
TGZT:           Yes, I understand that, yes. Yes, I want to give my children the opportunity to grow up as a whole family, if given the chance.
MEMBER:     Now, going back to your record of offending, which is relevant to this point. I’m not just going back to it for the sake of raking over old coals.
TGZT:           Yes.
MEMBER:     When we look at your record of offending in the Tender Bundle, page 366.[32] On 3 May 2017 we’ve got the first recorded and second recorded possession of prohibited drugs. Between that date, May 2017 and April 2018 S is born.
[32]ER2.
TGZT:           Yes.
MEMBER:     Then we have these very serious police pursuit and stealing and driving offences.
TGZT:           Yes.
MEMBER:     Then L is born April 2018. April 2018 was a busy month for you.
TGZT:           Yes.
MEMBER:     You’re a new father.
TGZT:           Yes.
MEMBER:     For the whole of S’ life you’ve been in trouble with the law.
TGZT:           Yes.
MEMBER:     And then L comes along. Does that make things better?
TGZT:           I was in gaol at the time that he come [sic] along.
MEMBER:     And then October 2019 …
TGZT: … Yes …
MEMBER:     … M ….
TGZT:           Yes.
MEMBER:     Again, another one of these “no authority to drive” offences. You’ve got three kids at this stage.
TGZT:           Yes.
MEMBER:     And then life seems to get out of control, doesn’t it?
TGZT:           Yes, it does.
MEMBER:     Why do you think life got so out of control after that point? I mean you’ve had time in prison, you’ve had a series of offences, you’ve been chased by police, you’ve got three kids.
TGZT:           Yes.
MEMBER:     It seems to me that you had every reason at that point to really look at yourself in the hall of mirrors and say, “Something’s got to change”.
TGZT:           Yes.
MEMBER:     No evidence that that’s happened.
TGZT: It didn’t, no.
MEMBER:     What’s different now?
TGZT:           Just, yes, the gravity of the situation that I’m in, possibly being deported and away from my family for God who knows how long.
MEMBER:     You could’ve been deported earlier, they could’ve cancelled your visa to remain in Australia after your first time in prison.
TGZT:           I didn’t know, it was never spoken of.
MEMBER:     By that stage you’ve got a fairly serious criminal offence history.
TGZT:           Yes.
MEMBER:     And that’s why you’re here today.
TGZT:           Yes, I understand that.
MEMBER:     It just occurs to me, as a person who has to have the best interests of your children at heart, that this is an almost impossible decision.
TGZT:           Yes.
MEMBER:     Should you be sent away from them and have them left in the care of their grandparents in the safe and protected and loving home that you had the benefit of …
TGZT:           … Yes …
MEMBER: … or should they be kept in contact with you and your partner who have been struggling unsuccessfully for a number of years with drug addictions and a compulsion to commit crimes.
TGZT:           Yes, I understand.
MEMBER:     What would you say in response to that?
TGZT:All I can say is that I’m past that point in my life. Everything that’s happened since this prison term; losing my sister; being in detention; someone being killed in detention … and me seeing it … it’s just - everything’s just a real eye opener; and, yes, I never want to be in this situation again or have my kids in the same situation.[33]
(emphasis added).
[33]Transcript pp 31–43.

The Applicant’s record of offending resulting in criminal convictions for drug-related offences as discussed above has been both frequent in the period 2008 to 2020 and, in the sense described at Direction 90 paragraph 8.1.1(1)(d), trending towards increasing seriousness . I have considered the cumulative effect of the Applicant’s history of repeated criminal offending and other conduct to date upon the community; the Applicant’s family of origin; his partner who is herself struggling with drug addiction; and, on the natural children of the Applicant who are presently subject to child protection orders and under the care of the Department of Communities.
The cumulative effect of the Applicant’s offending on these groups, although impossible to quantify, is extremely serious and will, unquestionably, continue to be experienced by them on a daily basis for years (and potentially decades) to come, regardless of any subsequent rehabilitation and reparations effected by the Applicant into the future.
The nature and seriousness of the Applicant’s Offending
Driving-related offending
The offending conduct which appears most frequently in the evidence associated with the Applicant (regardless of the number of actual convictions recorded) is unlawful conduct associated with driving. Indeed, the Applicant’s history of offending since 2008 appears to have had a particular focus on motor vehicles, including their theft and unlawful possession, in addition to the Applicant’s apparent indifference to relevant road traffic laws, customs of road usage and the express directions of police officers in the course of their traffic enforcement duties. At no point in his life prior to the present application, has the Applicant ever held a valid licence to drive.
Given that the Applicant acknowledges that he has driven motor vehicles as an unlicensed and at times reckless driver,[34] this offending behaviour demonstrated a disregard for not only his own well-being or the well-being of other road users and members of the public who were strangers to him, but also extending to those who are known and potentially dear to him.
[34]Transcript pp 16-21.
The seriousness of the Applicant’s driving-related offences is also aggravated by their frequency and trend of increasing seriousness. As contended by the Respondent, such escalating, callous and wilful disregard for the well-being of those around him over such a lengthy period of years cannot be trivialised.[35] Given the information and evidence before the Tribunal, it is remarkable that the Applicant’s extensive driving-related offending over time has resulted in no known fatalities or life-changing injuries to himself or others.
[35]Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326 at [20] per Senior Member Poljak.
[36]EA2/1.
The Applicant accepts that this aspect of his offending is abhorrent.[36]
Drug-Related Offending
The Applicant has been convicted and sentenced on drug-related charges in 2016, 2017, 2020 and 2021. The most serious of these convictions was his most recent, being on a plea of guilty, for “possession of a prohibited drug (methylamphetamine) with intent to sell or supply” which the Applicant was charged with on 23 June 2020 and for which he was sentenced on 6 April 2021. The full context of the Applicant’s conviction for this most recent drug-related offence described in oral submissions by the Respondent’s representative at the hearing on 4 August 2022 as follows:[37]
MR BURGESS: Yes, thank you. Thank you, Member. Member, I’ll focus mainly in my closing on the primary consideration of the protection of the Australian community. It doesn’t appear to be a contentious point that the crimes which the applicant has committed in terms of his pursuits from the police or the pursuits of him by police and the sell and supply of methamphetamine are serious offences in terms of both the fact that they attract lengthy prison sentences and certainly in terms of the running from police it’s a mandatory prison sentence.
And secondly, that with respect to sell and supply methamphetamine the devastation from methamphetamine to the community is also something that’s well established. The other consideration for the tribunal in looking at the seriousness of the offending is the frequency and the cumulative effect of that offending and whether there’s been an increase in seriousness of the offending over time. And, in our submission, that is the case such that the driving unlicensed as well. The cumulative effect of that is very serious, in my submission.
[37]Transcript/69.
Conduct such as that evinced by the Applicant’s history of offending summarised above is antithetical to considerations of community cohesion, public safety, or personal wellbeing. In addition, the disproportionate concentration of public resources required to address the immediate and long-term consequences of the Applicant’s considerable and repeated offending over time is clearly antithetical 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.”[38]
[38]Direction 90 at paras 5.2(1) and 8.1(1).
In this respect, it is worth noting that the relevant expression of community expectations in Direction 90 here referred to are hardly those applicable to the proverbial “good neighbour”.
Further, I note that when the discretion to revoke a decision to cancel a visa is being considered, paragraph 5.2(2) of Direction 90 also identifies as a relevant consideration the principle that: “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.” As required at para 6, this is one of the principles informing the application of considerations required by Direction 90.
The Tribunal finds that, on balance, the reasonable assessment required by paragraph 8.1.1 of Direction 90, being a consideration of the nature and seriousness of the Applicant’s criminal offending or other conduct to date including those driving-related and drug-related offences referred to above, leads to the conclusion that it is serious conduct from which the Australian community is entitled to be protected in the relevant sense.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction 90)
Paragraph 8.1.2 of Direction 90 relevantly 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.
(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 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).
(emphasis added).
The Tribunal in CZCV and Minister for Home Affairs[39](CZCV) summarised the task on review as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
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.
In BSJ16 v Minister for Immigration and Border Protection[40] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[39][2019] AATA 91.
[40][2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the preceding Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Protection of the Australian community (8.1.2(1))
With respect to the Australian community’s tolerance for any risk of future harm that would be caused if he were to repeat his offending behaviour, the Minister submitted that:[41]
The nature of the harm to the community should the Applicant again commit similar offences means that the community should not be expected to tolerate a risk of similar offences being repeated.
[41]Respondent’s SFIC para [30].
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 other serious conduct.[42]
[42]Para 8.1.2(2)(a) of Direction No. 90.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
As may be inferred from the discussion above, the nature of the harm that would be caused to the community if the Applicant were to reoffend or engage in the serious conduct that he has in the past would be serious, not only to individuals in the community, but also to the community as a whole. This harm has already been manifested in the Applicant’s own family unit, given that the care and protection of his four children has been vested in the Department of Communities.
It is to the credit of the Applicant’s own parents that they have taken on the day-to-day care of the three eldest of those children. The durability of this arrangement is something about which both the Applicant and his parents have expressed doubts. Any hope for reunification of the family unit is materially dependent on the Applicant’s enduring rehabilitation.
With respect to an assessment of the risk that may be posed to the Australian community by the Applicant, referred to at sub-para 8.1.2(2)(a) of Direction 90, the Minister made the following submission touching on the nature of harm that may be occasioned if the Applicant engages in further criminal or other serious conduct:[43]
[43]Respondent SOFIC paras [28]–[31].
28. In the present matter, the Minister submits that the nature of the harm that would be caused if the applicant were to reoffend is very serious and is likely to involve significant physical, psychological and financial harm to members of the Australian community such that the Australian community would have little tolerance for any likelihood of reoffending and future harm.
29. Further drug related offending should also be seen as having the ability to inflict a broad range of harm upon the Australian community. Those harms include physical harm, mental illness, violence, chronic health issues, and loss of productivity and engagement with the criminal justice system, all of which are serious and have significant cost to the broader community. As was acknowledged in the Commonwealth Department of Prime Minister and Cabinet’s 2015 Final Report of the National Ice Taskforce, methylamphetamine (also known as “ice”) creates a “distinct problem for society” because [referencing Tohiariki and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 1748 at [65] and [66]]:
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress [that] ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
30. The Department of Health National Drug Strategy 2017-2026 also identifies “Health Harms”, “Social Harms” and “Economic Harms”.
31. The applicant has also been convicted of serious driving offences on multiple occasions and the harm that could flow if the applicant were to re-offend in a similar manner include ‘serious physical harm and/or death’ as noted by Senior Member Poljak [referencing Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326].
(emphasis added)
The Applicant has made a number of statements relevant to this primary consideration (including throughout the hearing on 4 August 2022, when the detail of his criminal offending history was put to him by counsel for the Respondent). As noted above, the Applicant was lucid, candid, acknowledged the granular detail of his long history of offending conduct and apparently remorseful when it was put to him at the hearing. This is consistent with the Applicant’s written submissions. For example:[44]
I was charged with numerous offences. I am sorry, and I am ashamed that I have let everyone down. My parents, kids, fiancée, and the whole Australian community. I am not denying those facts. I am not going to contest the charges. I do not have a satisfactory answer in relation to this.
(emphasis added).
[44]EA1/4.
It is further noted that, while the Applicant’s history of criminal offending has resulted in over $18,900 in fine penalties, he has substantially met the obligation to repay those penalties as at the date of this decision.[45]
[45]ER2/448.
In his remarks at the Applicant’s most recent sentencing on 6 April 2021, his Honour Gething DCJ made the following observations relevant to the Applicant’s insight and remorse:[46]
Now, there’s a number of factors which suggest to me that you may well have turned a corner. You’ve expressed to the willingness to participate in substance abuse counselling. You were cooperative with police and made admissions when interviewed, which is also indicative of your remorse for your offending.
In your interview with the author of the pre-sentence report, you accepted full responsibility for your offending and did not attempt to minimise your behaviour.
…
And I do sense from all the materials before me that you’re now, I think, realising that you’ve got to do more than you did in the past in order to break the addiction. And as I said, that you’re eager to attend some substance abuse counselling.
…
So I am prepared to allow you modest amount of mitigation on the basis that you appear to have reached a turning point in your life, now having realised that the way you’ve been living in the past, basically under the domination of your drug addition, hasn’t worked well for you; hasn’t worked well for your partner; hasn’t worked well for your children.
And that you’ve got some motivation to change and you’re committed to continue on your rehabilitation journey, perhaps with a little bit more focus and effort than you have done in the past. So, because of those mitigating factors, I’ve reduced the sentence I would have otherwise imposed on you, and it’s in addition to the reduction I’ve already identified as a result of a plea of guilty.
(emphasis added).
[46]ER1/G7/48.
Although not determinative for present purposes, these observations at sentencing do provide some indication that the Applicant has demonstrated a durable and consistent sense of insight, contrition and remorse about the magnitude of his serious offending conduct and the impact that this has had beyond himself. Accordingly, there is no contention between the parties that the nature of the cumulative harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct of the type for which the Applicant has been charged and convicted since 2008 is unacceptable.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[47]
[47]Para 8.1.2(2)(b)(i) of Direction No. 90.
In addition to written submissions relating to the Applicant’s risk of re-offending,[48] the following summary submissions were made by counsel for the Respondent at the hearing on 4 August 2022:[49]
But that leads into the second part, which is the risk of reoffending. The fact that the applicant has had continuous offending for the same thing despite at first receiving fines, receiving countless cars being confiscated and impounded. The applicant’s received at first community based orders, which were then breached by doing the exact same thing that the community based order was implemented for. The applicant has then breached the community - and breached a suspended sentence that was brought in because he breached the community based order. And he did the same thing again and breached the suspended sentence that put him in prison.
Notwithstanding going to prison and being found suitable for parole the applicant went back into the community, was able to stay out of trouble for the length of his parole. And as soon as he wasn’t required by parole to live somewhere he’s gone straight back into the same behaviour.
This pattern, Member, in my submission shouldn’t be ignored. The applicant has had an opportunity to have his eyes opened to the consequences of offending both through the prison system and through firsthand experience of his brother going through the exact same thing in 2018 and being removed from Australia. So the applicant was well aware in the past what would happen if he continued to offend.
The simple fact of history is in the past that didn’t stop him from taking methamphetamines and committing crimes. Outside of being in prison or being under a parole order the applicant has in the past reoffended. Now, the Parole Board [sic] in February of this year again found that the applicant was suitable for parole and that parole plan is, as the tribunal has pointed out, is at page 295. It talks about the history of the reasons for that decision and one of those reasons was that there were conditions of parole that would be in place that would further reduce the risk.
Now, the Parole Board [sic] is in some sense looking at a similar thing as the tribunal but in another sense it’s looking at a much more restrictive view of when a person might reoffend and the risk to the community for the length of the person sentences that they’re not required to be in prison for.
Now, in the applicant’s case his parole order has ended now and if he were to be released into the community he wouldn’t be subject to the requirements of the Parole Board [sic], the check-in requirements. In the past it could be said that, well, the applicant would be subject to, as the witness from DCP said, urinalysis. Well, that’s in relation to whether or not he gets to live with his children. And in the past when he was subject to urinalysis he failed on every occasion knowing that by failing it was likely that he’d lose access to his children. So in the past that hasn’t prevented him from taking methamphetamine and from offending as well.
We’re left in a situation, Member, where, in my submission, the applicant remains a real risk to the community because there is a real risk that he will recommence taking methamphetamines. It’s well established and certainly in this evidence that one of the risk factors for the applicant offending is being around other people who are using drugs. So in this case we’ve got two habitual methamphetamine users, [the Applicant’s partner] who has started taking meth at the age of 13 and who has, according to the evidence, stayed away from - been able to stay off meth for I think the sentencing remarks of this month said 18 months and she said two years in her evidence.
Where really this isn’t a case of, therefore, just considering - is the applicant going to relapse, it’s a question of is [the Applicant’s partner] going to relapse. And if [the Applicant’s partner] relapses then that’s a real risk that TGZT will relapse as well. So there’s these compounding risks in this case that often aren’t seen in other matters that come before this tribunal as well.
[48]Respondent SFIC pp 10-11.
[49]Transcript/70.

The Applicant’s submissions of relevance can be summarised by the following extract from his written submissions:[50]
[50]EA1/2.
I want to make the best of what I have, and I want to be a role model to my kids.

My parents stepped up big time. They are currently raising my kids on my behalf.

I am grateful for what they are doing for me. When I was in prison. They brought my kids every week to see me. Those moments that I enjoyed are priceless to me.

My partner is in prison, and they are going to be doing the same for her. My father is 60 years old, and my mum is 58 years old. At this stage. I wish they would be enjoying their retirement.
When I was incarcerated, my sister [Name] sadly passed away due to unforeseen circumstances. She was young and healthy. That was a big shock to me and my family. I am still struggling to come to terms with her death. This was hard on myself and my parents. Our whole family was shattered. This made me prioritise my family and I wish to be better. Being the best father I can be, will be the greatest honour that I can give her.
I am so sorry that I have put all my beloved people in this predicament. I wish to take over the parenting role and relieve my parents. The responsibility of raising my kids falls on me and my fiancée. It is unfair for me to burden my parents. They are doing a fantastic job. They did a fantastic job raising me as well. My youngest kid in their care is almost three years old. If they were to raise them till, they are adults.

That will make my father and mother seventy-five and seventy-three respectively.

At that age my parents will probably have some complex medical issues of their own. At that age, it will be proper for them to enjoy that relationship as grandparents rather that full time parents.
And:[51]
I have been drug-free in the last two years and seeing my kids weekly in prison was a massive boost in our relationship. I realised, how much I miss them and how much I love them. My family means the world to me. Words alone, cannot fully express how much I love them.
“The diamond cannot be polished without friction, nor the man perfected without trials” Chinese Proverb. My current predicament has matured me faster. I am not proud of my situation. I have been trying to make up for the deficit that I have caused. I know that I have a long way to go, and I am doing that. I will apologise in perpetuity to everyone that I have wronged, my family and the whole Australian Community.
My kids are my greatest accomplishment and I wish to be there for them.

The Minister’s delegate and Solicitor are in congruence with the idea that video conferencing is going to suffice my parental role with my children. If we were automatons or cyborgs, maybe that would work. We are humans. That makes us social animals. It is the social part that cannot be simply compensated by video calls or money. Human presence supersedes everything.
My fiancée recently received an 18-months prison term. When I was in prison, my parents had the task of looking after my kids and bringing them to visit me weekly. That was hard on them, and I wish to alleviate them from those duties. I wish so much that you find mercy and grant me this opportunity. I am going to step up to the plate and be the best father I can be to my kids.
[51]EA1/10.
In support of the Applicant’s submission that he presents a low risk of re-offending, he has provided a number of support letters from people in his network of support. His mother, who has been providing primary care to three of the Applicant’s children under the supervision of the Department of Communities, has stated that the Applicant “has made tremendous progress towards his future. He has completed multiple courses and we have been privileged enough to see him mature.”[52] The Department of Communities’ Field Worker assigned as the Applicant and his family’s case worker has stated that the Applicant “shows great eagerness to be a positive member of the community and a great role-model for his children.”[53]
[52]EA2/10/213.
[53]EA2/15/226.
Further, as referred to above, albeit in a different context, the Applicant’s risk of re-offending was expressly considered in accordance with broadly similar public interest considerations, by the Western Australian Prisoners Review Board (Board) on 17 February 2022. That body made the following written findings:[54]
The Board notes that your visa to remain in Australia has been cancelled. Nevertheless, if you are subsequently successful in the revocation of the cancellation of your visa, the Board determines that your release in Western Australia does not pose an unacceptable risk to the safety of the community.
The fact the conditions of parole will further reduce the risk to the safety of the community.
Your parole plan which includes confirmed suitable accommodation, confirmed employment and support from family and peers.
Your participation in voluntary programmes, which demonstrates a motivation and willingness to address your offending behaviour.
Your successful completion of a Community Based Order in 2017 and a Parole Order (2018? 2019) which demonstrates an ability to comply with supervision requirements.
Your successful completion of the Pathways Program.
[54]ER2/295.
While the Board made its findings conditional upon certain requirements upon release. The conditions there provided (including stability of residence, urinalysis, support programs and engagement in employment or training)[55] are relatively unremarkable and are equally likely to be requirements for the Applicant’s successful transition to full reunification with his children.[56]
[55]Ibid.
[56]ER2 pp 597-598.
The foregoing evidence, together with a standing offer of employment to the Applicant by a member of the extended family with the resources to honour this offer,[57] tends to suggest that there is a remote risk of the Applicant re-offending in the relevant sense. However, the foregoing submissions and factors do not engage meaningfully with the history of offending and addiction presented by the Applicant’s partner, who is also the mother of their four children and to whom the Applicant remains devoted.
[57]EA2 pp 11, 216.
On this point, counsel for the Respondent made the following oral summary submissions at the hearing on 4 August 2022:
The applicant in terms of rehabilitation the only rehabilitation that the applicant has done has been court ordered rehabilitation. That’s the Pathways plan and the Narcotics Anonymous sessions. It’s certainly not the case that the applicant has engaged in continued voluntary Narcotics Anonymous sessions. It was his view that he’d reached the 12 sessions and that was sufficient for him. He didn’t see in his own mind he considered that was sufficient, that he will never touch drugs again.
Now, the applicant in that sense lacks the objectivity of an outsider looking at the stark reality of addiction and the fact that these are programs that are available outside of one on one sessions in the prison, they’re available now online to be able to be accessed whilst in immigration detention. The applicant hasn’t looked into that and that’s because in the applicant’s mind he doesn’t need to. And, in our submission, that demonstrates a certain lack of insight into the risk factors that are identified in the Pathways completion report.
And results in submission, Member, that the applicant is a real risk of reoffending and if the applicant does reoffend there’s a real risk that there would be serious harm caused to the Australian community either through the distribution of methamphetamine or through the applicant’s driving offences or dishonesty offences et cetera.
In evidence to the Tribunal at the hearing, the Applicant’s partner confirmed that she had been a dependent user of methylamphetamine for most of her life, since the age of 13. Her current, enforced, period of abstinence since November 2020 while incarcerated on drug-related offences, is her longest such period. Her evidence was as follows:[58]
The Department of Child Protection knew about that and they, obviously, intervened after our house had been raided and - yes, and they were aware of that and I told them my - my plan of action to give up the drugs like, as soon as possible, when they just - I feel bad - it just happened to be the day he was born was the last time I’ve used drugs, so - but they’re happy with my progress and they were drug testing me three times a week, then it downgrade to twice a week and then it, eventually, became once in a blue moon and whenever they felt necessary but, prior to me coming into gaol, I was having my children every second weekend and my youngest was with me full-time and the child - child protection, they were very happy with my progress and - yes, they were always contacting me, and stuff like that, and ensuring I had all the supports in place for me, if anything was to go wrong, but I haven’t - I haven’t turned back and relapsed, or anything like that, and I’ve done counselling in relation to my drug use when I - it was just getting off it and done about 10 counselling sessions and the lady actually said that she didn’t think I needed anymore counselling sessions in regards to my drug use because my drug use had ceased dramatically …
[58]Transcript/57.
Given the foregoing, I accept that there is a risk of the Applicant reoffending, particularly in the first instance, in terms of relapsing into methylamphetamine use. My reasons for so finding are in the complex interrelationship demonstrated to exist between his own history of methylamphetamine addiction and his committed relationship with the mother of his children who herself has a long-term history of methylamphetamine addiction.
While the Applicant genuinely appears to have reached a turning point in his life and is determined on a path of responsible parenthood and constructive engagement with his circumstances, there is no guarantee that his current remission from drug addiction will survive his transition into the community or the many challenges he will face in achieving reunification with his children. Likewise, there is no guarantee that, if his partner’s drug addiction ceases to be in remission, the Applicant will have the personal resolve or resources of character to take the necessary steps to immunise both himself and his children from the adverse consequences that would appear to be the inevitable consequences of such misadventure.
To the contrary, I take notice of the potentially positive involvement of the Department of Communities in the lives of the Applicant, his partner, their children and the Applicant’s parents. The evidence before the Tribunal satisfies me that this engagement is active, positive, and purposive on all sides. If the interrelated challenges faced by the Applicant are unhelpful with respect to his prospects for rehabilitation, the interrelated supports evident from this material are equally beneficial to those prospects. I also note that the Applicant clearly has a network of love and support in which he occupies an important role. This will be discussed further below, but for present purposes, I count these factors as generally supportive of the applicant’s risk of not re-offending. Accordingly, I find that the likelihood of the Applicant reoffending in the future is low.
The Tribunal finds that, on balance, para 8.1.2 of Direction 90, being the risk to the Australian community should the Applicant commit further offences, weighs against revocation of the Cancellation Decision.
I further find, in summary, that the first primary consideration should be given moderate weight against revoking the Cancellation Decision.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
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
…
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
…
j)   unlawfully depriving the family member … his or her liberty.
(Original emphasis.)
The Minister made the following submission on this aspect of the Applicant’s offending conduct:[59]
35. There is no relevant evidence in respect of this issue and this consideration is therefore neutral.
[59]Respondent SOFIC [35].
Although not directly relevant to this primary consideration, it is nevertheless worth acknowledging that the Applicant’s history of offending has not been entirely family friendly. The Applicant has himself made appropriate concessions to this point as follows:[60]
I have put the lives of my beloved family in turmoil. I am lucky to have a good and loving family and they have managed to step up during this ordeal. I am a son, fiancé and foremost a father of four lovely children. At this stage. My own actions have been selfish and have put the lives of my kids in disarray.
[60]EA2/1.
Having considered the evidence before it and the parties’ submissions, the Tribunal finds that this consideration does not arise in the terms provided for at Direction 90 and is therefore neutral.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
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.
The Applicant identifies his four minor children (of whom he is the biological father) as being relevant to this mandatory consideration under Direction 90.
The Minister made the following submission regarding the best interests of minor children in Australia:[61]
[61]Respondent SOFIC [36]–[40].
36. A number of factors must be considered in assessing the best interests of minor children. These include: the nature and duration of the relationship between the child and the person, the extent to which the person is likely to play a positive parental role in relation to the child; any relevant impact on the child of past conduct by the applicant; the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child; any known wishes of the child; and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the applicant’s actions including through exposure to family violence.
37. The applicant submits that the following minor children will be negatively impacted if his visa cancellation is not revoked (collectively referred to as the children):
a. N, born in Australia on [date], 1 year old
b. M, born in Australia on [date], 2-year-old
c. L, born in Australia on [date], 3-year-old
d. S, born in Australia on [date], 5-year-old
38. The four children are the applicant’s biological children and under the care of the CEO of the Department of Communities, Child Protection and Family Support (Department of Communities) until March 2023 (G14/86 and G20). The children are cared for by the applicant’s parents (their grandparents) (G14/86).
39. To the extent that the children’s best interests may be served by the applicant remaining in Australia, the Minister contends that the Tribunal should give this primary consideration limited weight. That conclusion should be reached for these reasons:
a. Prior to the applicant’s October 2020 and April 2021 incarceration, the children were of interest to the Department of Communities. Relevantly, on 25 May 2020 concerns were raised by Western Australia Police where it was recorded that the three children were present in a place where drug and drug paraphernalia was located (TB48 and 73-79). The Department of Communities investigated the matter and made an application on 9 September 2020 to the Children’s Court of Western Australia. Ultimately the children were placed under the care of the CEO of the Department of Communities by order dated 12 March 2021 for a period of two years (G20) (paragraph 8.3(4)(b) of Direction 90).
b. The sentencing judge also recorded (G7/47):
‘Due to you and your partner’s entrenched drug use and drug dealing, all of your children have been placed in the care of the Department of Community Protection. And the three oldest children are currently with your parents. The newborn baby is in foster care… and the comments of the Department of Community Protection – made some comments about the extent of drug use in the residence in which the children came from’
c. The applicant is unlikely to play a positive parental role given his history and the unsafe environment the children were living in which resulted in them being placed in the care of the Department of Communities (paragraph 8.3(4)(b) of Direction 90). The applicant’s offending also occurred across the road from a primary school and young children.
d. In the event that the applicant is unable to abstain from substance abuse and address his issues, the children face a risk of harm and neglect (TB47) (paragraph 8.3(4)(g) of Direction 90).
e. The applicant’s relationship with his children has been marked with a lengthy absence, given that the applicant has been in custody since October 2020.
f. There is no obvious impediment to the applicant having contact with his children via electronic means (paragraph 8.3(4)(d) of Direction 90).
40. Overall, to the extent that this consideration weighs in favour of revocation, it does not outweigh the significant weight to be attributed to the protection and expectations of the Australian community.

I also refer to the principles set out in para 5.2 of Direction 90 as set out in para [37] above.
As noted at para [35] above, Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH)[93] at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65),[94] the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).[95]
[93][2021] AATA 1143.
[94]Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
[95](2019) 272 FCR 454.
Senior Member Morris in NTTH summarised the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into 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. ...
I accept the reasoning of Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[96] the effect of the Full Court’s judgment in FYBR and the current state of the law was summarised as follows:
156.... The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
[96][2020] AATA 3953.
Justice Stewart in FYBR found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 420-422; 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans (1981) 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case — they are to be understood and applied normatively.
(Emphasis omitted.)
Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79. ... The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, given the nature of the Applicant’s criminal offending this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa.
With respect to the Applicant, the Minister submitted that the expectations of the Australian community should weigh heavily against revocation in the present circumstances.[97]

The Applicant’s submissions on this point were not well-adapted to the requirements of Direction 90.[98] To the extent that his submissions in this context were apposite to other aspects of Direction 90, they have been considered in those contexts directly.
[97]Respondent SOFIC [45].
[98]EA2 pp 4-7; Transcript pp 73-74.
The Tribunal considers that the expectation of the Australian community would be that the Applicant would obey Australian laws whilst he is in Australia. As outlined above when detailing the Applicant’s history of criminal offending, the Applicant committed offences that required the mandatory cancelation of his visa because, by operation of law (s 501(3A)) the applicant does not pass the character test due to his “substantial criminal record” as this is defined at s 501((6)(a) and (7)(c) and (d) of the Act. Accordingly, as a “norm” the Australian community expects the Government to not allow such a non-citizen to enter or remain in Australia.[99]
[99]Direction 90, para 8.4(1).
Applying Direction 90, the Australian community expects that the Applicant would not continue to hold a visa having committed what is properly construed as serious offending. In addition, there is an expectation that non-citizens obey Australian laws and that evidence to the contrary must weigh against the revocation of the Cancellation Decision. However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This depends in each case on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, I am guided by the principles in para 5.2 of Direction 90. Paragraph 5.2(2) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.4(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
Having regard to the expectations of the Australian community as per paras 5.2 and in particular 5.2(4) of Direction 90, the Tribunal accepts that the community may afford a higher level of tolerance for the criminal conduct or other serious conduct by non-citizens who, like the Applicant, have lived in the Australian community for most of their life or from a very young age.
In this case, I note that the Applicant has been a permanent resident in Australia since shortly before his sixth birthday. All of his subsequent physical and psychological development occurred in Australia. While he has holidayed in New Zealand, Australia is for all practical purposes his home.
I accept that the community would have sympathy for the Applicant’s personal history of losing both his elder brother due to a prior visa cancellation and removal on character grounds and, more recently his only remaining sibling in Australia, his sister. I also accept that the burden of his removal would be most harshly fall on his older parents and his infant children, though this is balanced against his record of frequent and persistent offending since 2008.[100]
[100]ER2 pp 359-366
Due to the application of the “norm”, as it is now referred to in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa. In this case, I find that moderate weight should be given to this consideration.
OTHER CONSIDERATIONS
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 (para 9.1)
Paragraph 9.1 of Direction 90 relevantly provides:
(1) 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. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
…
Neither party made written submissions to the Tribunal on this consideration.
In the present case, I find that the non-refoulement consideration does not arise in the context of the decision to revoke the cancellation decision, given that the Applicant’s return to New Zealand does not give rise to any non-refoulement obligations.
This consideration is therefore neutral with respect to the requirements of Direction 90.
Extent of impediments if removed (para 9.2)
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.
Properly framed, this consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the Applicant would face an impediment or impediments in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of New Zealand enjoy.
Relevantly, counsel for the Respondent made the following summary submissions at the hearing on 4 August 2022 in relation to the extent of any impediments that the Applicant may face if removed from Australia:[101]
Now, our submission is that simply shouldn’t be given any substantial weight.
The applicant would be removed to New Zealand. The applicant has family in New Zealand, certainly his brother is there and his brother is no longer, according to the applicant, taking methamphetamines. So it is the case that the applicant would be able to have support there. The applicant has an aunt and an uncle and a cousin in New Zealand as well.
It’s also the case that it can be taken on notice that the citizens of New Zealand have a similar access to medical, social and economic supports as - or he would have access to the same supports as someone in - other New Zealand citizens and that is really a similar system to Australia. That consideration shouldn’t be given any substantial weight.
[101]Transcript/73.
This summary submission is supported by the contentions presented in the Respondent’s SFIC, relying on the Federal Court authority of Uelese.[102]
[102]Respondent SOFIC paras [48]-[55]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
To the extent that the Applicant might be said to have touched on the question of removal to New Zealand, his evidence was more focussed on other, relevant considerations and addressed elsewhere in this decision.
The Applicant is a resourceful and capable 32-year-old, holding relevant qualifications and experience and having no apparent health conditions that might limit or impair his capacity to establish and maintain basic living standards, in the context of the basic living standards of other citizens of New Zealand. There are no substantial language or cultural barriers; and the social, medical and/or economic support available to him in that country is equivalent to that enjoyed by permanent residents in Australia.
Accordingly, I find that the effect of impediments if removed consideration does not arise in the context of the decision to revoke the cancellation decision, given that the Applicant’s return to New Zealand does not give rise to any impediments in the relevant sense.
The impact of this consideration is therefore neutral with respect to the requirements of Direction 90.
Impact on victims (para 9.3)
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.
Neither party made written submissions to the Tribunal on this consideration.
Having considered the evidence before it and the parties’ submissions, the Tribunal finds that this consideration does not arise and is therefore neutral with respect to the requirements of Direction 90.
Links to the Australian community (para 9.4)
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.
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia and the impact of non-revocation of the visa cancellation decision on the Applicant’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. The Tribunal must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 of Direction No 90 states:
(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 non citizen 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.

Relevantly, the Minister’s written submissions in relation to the extent of the strength, nature and duration of the Applicant’s ties to Australia were as follows:[103]
56. Paragraph 9.4 of Direction 90 requires the decision-maker to have regard to the strength, nature and duration of the non-citizen’s ties to Australia, and the impact on Australian business interests. Only the former is relevant in this review.
57. The Minister accepts that non-revocation decision may have an adverse effect on members of the applicant’s immediate family in Australia, namely, his parents (citizens of New Zealand) (G13/80), sister (citizen of New Zealand) (G13/80), children and partner (Australian citizen) (paragraph 9.4.1(1) of Direction 90). However, there is nothing to suggest that any of these people would face insurmountable hardship in the event of the applicant’s departure.
58. In respect of his children the impact a non-revocation decision will have on them will be brought to account in the Tribunal’s assessment of the third primary consideration and there is no need to “double count” that impact.
59. The applicant has lived in Australia for 26 years. The length of time he has spent in Australia is a factor the Tribunal must bring to account (paragraph 9.4.1.(2)(a) of Direction 90). The applicant states that he was a pastry chef and later a ceiling installer although there is no evidence of the positive contributions that the applicant may have made to the Australian community through periods of employment (paragraph 9.4.1(2)(a)(ii)). Relevantly, the applicant’s perception was that he could solve his financial problems with crime (TB287) and his offending had ‘an element of commerciality’ as noted by the sentencing judge (G7/46) such that any positive contribution through employment needs to be viewed through the lens that the applicant turned to crime rather than legal employment to earn an income.
60. Whilst it is open for the Tribunal to place weight on this consideration in favour of the applicant, the Minister submits that this consideration does not outweigh the relevant primary considerations which weigh heavily against revocation.
[103]Respondent SOFIC paras [56]-[60].
The seriousness and nature of the Applicant’s offending is quite properly stressed by the Minister as being both pernicious and repugnant. I have given due weight to that aspect of the Applicant’s offending above, in particular with respect to the protection of the Australian community.
Consistent with the principles at para 5.2(4) of Direction 90, I find that Australia may afford a higher level of tolerance towards the Applicant’s criminal conduct as a non-citizen who has lived in the Australian community for most of his life, from the very young age of 5 years. Having found this, I find that in the present case, such community tolerance is only slight, given the Applicant’s acknowledged history of recidivism.
It is noted that the Minister’s written submission fails to adequately account for the impact of the recent, tragic death of the Applicant’s sister. This means that the Applicant is currently the only living child of the Applicant’s parents who is still resident in Australia.
This bereavement has also had the effect of reducing an already small and close-knit family support network committed to the care and support of the Applicant’s infant dependent children.
To some extent, this change in circumstances appears to have informed the oral submissions of the counsel for the Respondent at the hearing on 4 August 2022 which were as follows:[104]
The links to the Australian community are something that will weigh in the applicant’s favour and we accept that. The applicant has his parents. He has his partner and, of course, he has his children. Now, the children in that effect their considerations are already taken into account under the best interests of the children.
But the applicant’s parents and partner would be adversely affected if the applicant was removed given their evidence they’ve given to the tribunal. That is again a factor that although weighs in favour of the applicant that doesn’t outweigh the protection of the Australian community in this matter.
[104]Transcript/73.
As discussed above in the context of the best interests of the Applicant’s children, the removal of the Applicant will have the likely outcome that at least the older three children, currently residing with the Applicant’s parents, will remain subject to parenting orders under the care and protection of the Department of Communities. The evidence discussed above supports a finding that the current care arrangements are not likely to prove durable in the medium term without the engaged and committed day to day involvement of the Applicant. The consequences of such a foreseeable outcome flowing from the removal of the Applicant to New Zealand would be profound, deleterious and wide-ranging for persons with whom the Applicant has family or social links including, but not limited to, his four Australian citizen children, his Australian citizen partner and his permanent resident parents.
Furthermore, given the available research on life outcomes of the descendants of the stolen generations (as referred to expressly by the Applicant in his written submissions), such adverse consequences appear to be more likely than not with respect to his four infant Australian citizen children.[105] As for the Applicant’s partner, her current incarceration and long-term substance addiction mean that there are many challenges to overcome before family reunification is possible.
[105]See above paras [106], [117].
However, on the evidence presented I find that the Applicant and his partner are presently in remission from their methylamphetamine addiction. They have both demonstrated a willingness to engage positively with the Department of Communities in the stages towards reunification. While it appears to be possible that the Applicant’s partner may achieve reunification with the youngest child N as discussed above, regardless of the committed support of the Applicant, it seems highly unlikely that reunification with the older three children will occur within a realistic timeframe.
I accept the Respondent’s submissions that neither the Applicant nor his partner have had their current remission from substance addiction tested in the community. However, as discussed above, my finding is that the evidence supports the proposition that there is a low risk that the Applicant will reoffend on release into the community.[106]
[106]See above para [76].
I further note that the Applicant currently has a standing offer of employment with the maternal uncle of the Applicant’s partner. This provides some assurance of stability and continuity for the Applicant if he were to remain in Australia.[107]
[107]See above para [71].
Accordingly, the Tribunal finds that the effect of the visa cancellation decision would be significant to the Applicant’s immediate family members and support network in Australia. This is evidenced by the willingness of the Applicant’s support network to assist with his ongoing care and rehabilitation and the staged reunification of his family unit if the cancellation decision were to be revoked.
I find that this consideration weighs in favour of revoking the Cancellation Decision. Given the evidence discussed above, I find that substantial weight should be given to this consideration.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(1) 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.
Relevantly, the Minister made the following submissions in relation to the extent of any impediments that the noncitizen may face if removed from Australia to:[108]
62. The Applicant’s employment history has not been such that his removal from Australia would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised.
63. Overall, the respondent accepts that the Applicant has reasonably strong ties to Australia, and that some weight should be given to this ‘other consideration’ in favour of revocation of the visa cancellation decision.
[108]ER1/15.
Neither party made written submissions to the Tribunal on this consideration.
Having considered the evidence before it and the parties’ submissions, the Tribunal finds that this consideration is neutral with respect to the requirements of Direction 90.
I have considered the other consideration “Links to the Australian Community” required at Paragraph 9.4 of Direction 90. Cumulatively, I find that this other consideration weighs in favour of revoking the Cancellation Decision. I also find that substantial weight should be given to this other consideration.
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.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[109] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[110]
[109](2018) 74 AAR 545.
[110](2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[111] At para [21] Wigney J cited para [23] of Colvin J’s judgment, which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(emphasis added.)
[111][2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
(emphasis added).
I adopt the approach directed by the above cases.
Primary Consideration 1
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in paras [33]–[77] above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as low. Taking into account the significant harm that would be caused to the community if the Applicant were to reoffend and the likelihood of him reoffending, this consideration weighs against of the revocation of the cancellation of the visa. Moderate weight should be given to this primary consideration.
Primary Consideration 2
Given that the Tribunal has found that the Applicant has not engaged in family violence, for the reasons set out at paras [78]–[82] above, the second primary consideration, family violence, has neutral weight against revocation of the cancellation of the Applicant’s visa. Neutral weight should be given to this primary consideration.
Primary Consideration 3
For the reasons set out in paras [83]–[121] above, the third primary consideration, the best interests of minor children, weighs in favour of the revocation of the cancellation of the Applicant’s visa. Substantial weight should be given to this primary consideration.
Primary Consideration 4
For the reasons set out at [122]–[137] above, the fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this primary consideration.
Other Considerations
International non-refoulement
For the reasons set out above in paras [139]–[142] as the Applicant’s return to New Zealand does not give rise to a non-refoulement obligation, the Tribunal has found that this other consideration has a neutral weight in the context of the decision to revoke the cancellation decision.
Extent of impediments
With respect to the consideration of the extent of impediments, the Tribunal has found at paras [143]-[149] above the Applicant’s return to New Zealand does not give rise to any impediments in the relevant sense. The impact of this other consideration is therefore neutral with respect to the requirements of Direction 90.
Impact on victims
The consideration of the impact on victims as directed by para 9.3 of Direction 90, for the reasons set out above at para [150]-[152] the Tribunal finds that this other consideration does not arise and is therefore neutral with respect to the requirements of Direction 90.
Links to the Australian community
The consideration of the strength, nature and duration of the ties that the Applicant’s links to the Australian community weighs substantially in favour of the revocation of the cancellation of the visa. Based on the submissions of the parties, the impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, the Tribunal has found that this is a neutral component of the relevant consideration. Cumulatively, the Tribunal finds that this other consideration weighs in favour of revoking the Cancellation Decision. For the reasons set out above at paras [153]–[172], substantial weight should be given to this other consideration.
CONCLUSION
As noted by Deputy President Boyle in James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[112] whether a consideration does or does not outweigh any other particular consideration (or considerations) is not the relevant test.

In weighing the considerations, primary and other, the exercise is not one of comparing one against another, but rather of giving weight to each of the considerations and weighing them as a whole, those for and those against revocation and determining which have the greater weight in total, those for or those against revocation.
[112][2022] AATA 2390 [112].
Having weighed the relevant considerations in favour of the revocation of the cancellation of the Applicant’s visa and the relevant considerations against the revocation of the cancellation of the Applicant’s visa, 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 Reviewable Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 26 May 2022, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, pursuant to 501CA(4) of the Act 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.

I certify that the preceding 190 (one hundred and ninety) paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly

..............[Sgd]..........................................................
Associate
Dated: 18 August 2022

Date of hearing: 4 August 2022

Applicant: Self-represented

Counsel for the Respondent: Mr A Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	4 August 2022
Applicant:	Self-represented
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers