Thodey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4809
•9 December 2021
Thodey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4809 (9 December 2021)
Division:GENERAL DIVISION
File Number: 2021/6666
Re:Nigel Thodey
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:9 December 2021
Place:Perth
The decision of the delegate of the Minister dated 13 September 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY (Subclass 444) Special Category visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of the Migration Act – decision not to revoke mandatory cancellation of visa – Applicant fails character test – Direction 90 considered – Applicant is a citizen of New Zealand – drug-related offending – considerations not relevant – considerations against revocation marginally outweigh considerations in favour of revocation – there is not “another reason” to revoke the visa cancellation – reviewable decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 846
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1524
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
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
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Safar and Minister for Immigration and Border Protection [2015] AATA 503
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
WCFW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3797
Webb v Minister for Home Affairs [2020] FCA 831
SECONDARY MATERIALS
Department of Health, National Drug Strategy 2017–2026 (18 September 2017)
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) para 14.4
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) paras 4(1), 5.1, 5.1(3), 5.2, 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a)(iii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2(3)(a), 8.2(3)(b), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(d), 8.3(4)(e), 8.4, 9, 9(1)(c), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1, 9.4.2
REASONS FOR DECISION
Deputy President Boyle
9 December 2021
THE APPLICATION
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 13 September 2021[1] not to revoke the mandatory cancellation of the Applicant’s Class TY (Subclass 444) Special Category visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act).
[1] R1, G4.
The Applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test by reason of his substantial criminal record and 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 (AAT) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUES
The issues for determination are:
(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.[2]
[2] Act s 501CA(4)(b)(ii).
BACKGROUND
The following facts are taken from the Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) and the Minister’s Statement of Facts, Issues and Contentions (Minister’s SFIC) and are not in dispute.
The Applicant is a 33-year-old citizen of New Zealand.[3]
[3] R1, G8/41.
The Applicant first arrived in Australia in or around 1988 or 1989 with his mother. It is unclear how long he was present in Australia before returning to New Zealand.
He returned to Australia on 6 April 2005 and upon entry was granted a Class TY (Subclass 444) Special Category visa. He returned to New Zealand on 8 June 2005 at which time that visa expired.
The Applicant was convicted of breach of local liquor ban and fined $75 (along with court costs of $130) on 12 January 2006. The offence was committed on 31 December 2005 in Waihi, New Zealand when the Applicant was 17 years old.
The Applicant was convicted of breath alcohol level over 400 mcgs/litre of breath on 2 September 2008. The offence was committed on 17 May 2008 in New Zealand. He was fined $450 (along with court costs of $130) and his licence was disqualified for six months from 3 September 2008.[4]
[4] R1, G6.
The Applicant began living permanently in Australia on 23 January 2010 at which time he was aged 21.[5] Since that time the Applicant has departed Australia on the following occasions to travel to New Zealand and was granted a new visa upon each entry:
(a)15 – 26 November 2012;
(b)28 March – 7 April 2014;
(c)28 May – 2 June 2014; and
(d)20 August 2015 – 23 January 2016.[6]
[5] R1, G28.
[6] R1, G28.
On 24 August 2010 the Applicant was found guilty of committing public nuisance (committed on 17 July 2010– six months after he arrived) in Queensland.[7] No conviction was recorded, and he was fined $300.
[7] R1, G5.
The Applicant moved to Western Australia in or around 2012. Between 2012 and 2013 he worked as a storeman/warehouse worker for Integrated Industrial Mining Supply in Belmont.[8]
[8] R1, G11/75.
Between 2014 and 2016 the Applicant worked as an underground offsider and trainee driller (as part of an ongoing traineeship) for Swick Mining Services on a fly-in-fly-out basis.[9]
[9] R1, G11/74.
On 5 April 2015 the Applicant committed the offences of possess a prohibited drug (cannabis) and driving with prescribed illicit drug (methamphetamine). He was fined $600 for the drug offence and $250 for the driving offence.[10]
[10] R2, 49.
The Applicant travelled to New Zealand in August 2015 and returned to Australia on 23 January 2016. He was granted a Class TY (Subclass 444) Special Category visa on entry.
Between April 2017 and November 2018, the Applicant worked as a factory hand for Duo Glass Doors and Windows Pty Ltd.[11]
[11] R1, G11/74.
On 20 October 2017 the Applicant was convicted of two counts of no authority to drive (suspended) and two counts of use an unlicensed vehicle, committed on 15 August 2017 and 8 September 2017.[12] He was fined $1,000 in total and his licence was disqualified for 18 months.[13]
[12] R2, 49.
[13] R1, G5.
On 21 May 2018 the Applicant was fined $400 for “without lawful excuse trespassed on a place”, committed on 10 March 2018 at Optus Stadium, Burswood Western Australia.[14]
[14] R2, 49; R2, 27.
Between 2015 and 2018 the Applicant was sentenced for six further offences including possession of cannabis, driving whilst suspended (twice), using an unlicensed vehicle (twice) and driving with a prescribed illicit drug.[15] Those offences resulted in fines and/or periods in which the Applicant was disqualified from driving. The Applicant’s full offending record is set out below:[16]
[15] R1, G5.
[16] R1 G5/28–9; R2, 111–12.
Court
Result date
Offence
Offence date
Result
Perth Magistrates Court
16 March 2020
Possessed a controlled weapon
25 June 2018
$200 fine
Perth Magistrates Court
16 March 2020
Possession of stolen or unlawfully obtained property
25 June 2018
$100 fine
Perth Magistrates Court
16 March 2020
Unlicensed person possess firearm/ ammunition
25 June 2018
$100 fine
Perth Magistrates Court
16 March 2020
Possessed a prohibited drug
25 June 2018
$200 fine
Perth Magistrates Court
16 March 2020
Possessed a prohibited drug
25 June 2018
$400 fine
Perth Magistrates Court
16 March 2020
Possessed drug paraphernalia in or on which there was a prohibited drug or plant
25 June 2018
$200 fine
Perth Magistrates Court
16 March 2020
Possessed a prohibited drug
25 June 2018
$400 fine
Perth District Court of Western Australia
30 January 2020
Possession of prohibited drugs with intent to sell or supply (cannabis)
25 June 2018
12 months’ imprisonment (concurrent) from 27 January 2020
Perth District Court of Western Australia
30 January 2020
Possession of stolen or unlawfully obtained property
25 June 2018
Nine months’ imprisonment (cumulative) from 27 January 2020
Perth District Court of Western Australia
30 January 2020
Possession of prohibited drugs with intent to sell or supply
25 June 2018
Drug trafficker declaration
Perth Magistrates Court
21 May 2018
Without lawful excuse trespassed on a place
10 March 2018
$400 fine
Joondalup Magistrates Court
20 October 2017
Used an unlicensed vehicle
8 September 2017
$100 fine
Joondalup Magistrates Court
20 October 2017
Used an unlicensed vehicle
15 August 2017
$100 fine
Joondalup Magistrates Court
20 October 2017
No authority to drive – suspended
15 August 2017
$400 fine; motor driver’s licence disqualified for nine months (cumulative)
Joondalup Magistrates Court
20 October 2017
No authority to drive – suspended
8 September 2017
$400 fine; motor driver’s licence disqualified for nine months (cumulative)
Perth Magistrates Court
9 July 2015
Driving with prescribed illicit drug
5 April 2015
$250 fine
Perth Magistrates Court
26 May 2015
Possess a prohibited drug (cannabis)
5 April 2015
$600 fine
Southport Magistrates Court
24 August 2010
Commit public nuisance
17 July 2010
$300 fine; no conviction recorded
The Applicant began a relationship with Ms S in or around June 2018. Ms S has one daughter born in 2016 in Australia.[17]
[17] R1, G9/50; R1, G9/53.
The Applicant was taken into custody on remand after police raided his home on 25 June 2018. He was released on bail on 28 June 2018.[18]
[18] R1, G22/91; R2, 90.
The Applicant began counselling with Clear Health Psychology on 7 June 2019.[19]
[19] R2, 54.
On 25 September 2019 the Applicant obtained his High Risk Working at Heights card and completed a course on basic scaffolding.[20]
[20] R1, G11/74.
Between late 2019 and January 2020 the Applicant worked as a kitchenhand for Seafood Nation in Hillarys, Western Australia.
On 30 January 2020, the Applicant was sentenced in the District Court of Western Australia to imprisonment for two years for the crime of possession of a prohibited drug (LSD) with intent to sell or supply.[21] At the same time he was also sentenced to imprisonment for one year for possession of a prohibited drug (cannabis) and a further nine months for the crime of possession of stolen or unlawfully obtained property.[22] The Court ordered that the sentences were to be served on a partly concurrent basis such that the overall sentence was two years and nine months.[23] The Applicant was also declared a drug trafficker.[24]
[21] R1, G5; R1, G7/32–3; R2, 109.
[22] R2, 108.
[23] R1, G7/39–40.
[24] R1, G7/34.
On 10 March 2020, the Applicant was notified that his visa had been cancelled under s 501(3A) of the Act with effect from that date.[25] The visa was cancelled because the Applicant had, by reason of the sentences received on 30 January 2020, a substantial criminal record and he was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of a State.[26]
[25] R1, G29.
[26] The Act ss 501(6)(a), 501(7)(c).
On 16 March 2020, the Applicant received fines for a further seven offences which involved possession of prohibited drugs, firearms, stolen property, and controlled weapons.[27]
[27] R1, G5.
On 18 March 2020, the Applicant sought revocation of the decision to cancel the visa.[28]
[28] R1, G8.
On 6 November 2020 the Applicant completed the six-week methamphetamine program at Karnet Prison Farm.[29]
[29] R1, G25/108.
The Applicant's relationship with Ms S ended on or around 1 January 2021.[30]
[30] R2, 183.
The Applicant was granted parole on 18 May 2021 and is currently detained at Yongah Hill Immigration Detention Centre.
On 13 September 2021 a delegate of the Minister decided not revoke the mandatory cancellation of the Applicant's visa. The Applicant was notified of the delegate’s decision on 16 September 2021 and lodged his application for review with the AAT on the same day.[31]
[31] R1, G2.
THE HEARING AND THE EVIDENCE
The application was heard on 26 November 2021. The Applicant was represented by Ms A Graziotti of Estrin Saul Lawyers and the Minister was represented by Mr A Burgess of Sparke Helmore Lawyers. The following documents were admitted into evidence:
(a)Statement of Joseph Brady, undated, unsigned, filed in the Tribunal 23 November 2021 (A1);
(b)Screenshot of text messages dated 15 November 2021 (A2);
(c)Letter from TJJD Enterprises Pty Ltd dated 19 November 2021 (A3);
(d)Statutory declaration of Joshua Gatonyi dated 22 November 2021 (A4);
(e)Statutory declaration of Karlee Emma Germano dated 22 November 2021 (A5);
(f)Statutory declaration of Krystal Roberts dated 14 November 2021 (A6);
(g)Statutory declaration of Blair Gordon Clothier-Cronin dated 15 November 2021 (A7);
(h)Statutory declaration of James Dean Shortland dated 15 November 2021 (A8);
(i)Statement of the Applicant dated 16 November 2021 (A9);
(j)Section 501G documents (R1);
(k)Tender bundle (R2); and
(l)Acknowledgement of receipt of reviewable decision, signed by the Applicant 16 September 2021 (R3).
The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Cody James Shortland;
(c)Joseph Brady;
(d)Blair Gordon Clothier-Cronin; and
(e)Joshua Gatonyi.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act 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;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
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:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that:
A person or body must comply with a direction under subsection (1).
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90). The commencement date for operation of Direction 90 was 15 April 2021. 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).
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.
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:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other 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.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the mandatory 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 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Does the Applicant pass the character test?
The Applicant does not dispute that he does not pass the character test.[32]
[32] Applicant’s SFIC para 33.
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[33] The character test is defined in s 501(6) of the Act (see [37] above). Under s 501(6)(a) of the Act, a person will not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [38] 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...” That is so in the Applicant’s case.
[33] [2009] AATA 47; (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 [39] above). The Applicant agrees that that is the sole question for determination.[34]
Is there another reason why the original decision should be revoked?
[34] Applicant’s SFIC para 34.
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.
Nature and seriousness of the conduct (para 8.1.1)
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).
While the Applicant has a significant number of convictions, it would be fair to describe a significant portion of his offences as minor. Obviously the most serious of the Applicant’s convictions are those for which the Applicant was sentenced in the District Court on 30 January 2020. In sentencing the Applicant, Stevenson DCJ made the following comments:
Mr Thodey, you are to be sentenced for two counts involving drugs and also one count for the possession of money. The judgment of conviction was entered today on your own plea of guilty in relation to counts 1, 2 and 3…
…
The offences were committed in the circumstances which have been outlined by the prosecutor by reference to the amended statement of material facts dated 7 October 2019. In summary, a parcel which you had ordered and was to be delivered to your address was intercepted. It contained the 175 LSD tabs. The prohibited drugs were substituted with an inert substance and a controlled delivery occurred at about 1.15 pm on 25 June 2018. You were arrested shortly after when returning to your place.
Cannabis was located in and around your home together with the usual drug paraphernalia, including scales and unused clipseal bags. Your mobile telephone or at least a device belonging to you was interrogated and it disclosed, as can be seen from the prosecution brief, drug dealing in relation to cannabis or LSD, there being some doubt about what has been referred to in some of the evidence.
On any view, the offending is very serious. You would have appreciated at all times that on apprehension you would have been required to serve an immediate term of imprisonment. Everybody in the community knows that who deals with drugs and who uses drugs.
The reason the message has been a strong one for a number of years is because of the harm that drugs cause in the community. You, yourself, are a victim because you use drugs and it has impacted upon your ability to live prosocially in the community.
Sitting behind your own use of course is the fact and you are evidence of that, that other users to whom you were no doubt supplying drugs commit offences against innocent members of the community in order to obtain funds and property to exchange for the drugs that they require for their addiction.
LSD is a powerful hallucinogenic drug. It’s a mood changing chemical often referred to as acid. This was not a one-off opportunistic offence. The offending is consistent which is accepted by you with all of the other evidence located at the time with you being a user/dealer for commercial purposes in part to fund your own drug habit and also in part to fund your own lifestyle because at various times you were not working and because you were a citizen of New Zealand, you were unentitled whilst unemployed to unemployment benefits in this country.
…
With respect to cannabis the sentencing considerations were dealt with by the Court of Appeal in the State of Western Australia v Yeates [2018] WASCA 232 where in a joint judgment [their] Honour’s said at paragraph 36 that:
Ordinarily as a matter of fact a term of immediate imprisonment is the only appropriate sentencing option for offences against section 6(1) of the Misuse of Drugs Act, because of the harm caused by illicit drugs such as cannabis and the need for general deterrence.
The Applicant’s evidence at the hearing was that it had been suggested to him by a friend (with whom he no longer associates) that LSD could help with his depression and that, taken in small doses, it may help with anxiety and stress. This friend, according to the Applicant, also showed him how to “order” the LSD through the dark web.[35] The drugs, cash, ammunition and drug paraphernalia found during the police search of the Applicant’s house following the interception of the LSD gave rise to the other charges on which he was convicted on 30 January 2020 and 16 March 2020.[36]
[35] transcript at 16.
[36] See R1, G5.
In cross-examination, the Applicant’s evidence was that this was the first time that he had sought to have drugs mailed to him. Counsel for the Minister put to the Applicant that that was not the case because, in the search of his residence, the police found other padded envelopes addressed to the Applicant.[37] The Applicant denied that that was the case. His evidence was that the LSD (found in the freezer) has been supplied to him by friends.
[37] transcript at 25.
As well as the drugs (LSD, cannabis and MDMA), electronic scales and zip lock bags were located in the police search. The Applicant admitted that these were used by him in his drug dealing. In cross-examination the Applicant’s evidence was that the 100 grams of cannabis found by police during the search of his house was for his own use although he did admit that he was supplying drugs, albeit not for profit.[38]
[38] transcript at 23.
The Applicant was also asked about the earlier convictions. According to the Applicant, the circumstances that gave rise to the conviction for trespassing on Optus Stadium in 2018 were that he was at a rugby game with a group of friends, one of whom, the wife of a good friend who was away working at the time, was heavily intoxicated and jumped over the fence onto the arena. The Applicant says that he “wanted to be there for her so she was safe at the end of the game” so he jumped the fence onto the arena and approached the security guards who had detained her. As a result, he too was detained and charged with trespass.[39]
[39] transcript at 16.
The Applicant was cross-examined about the public nuisance conviction in Queensland in 2010. His evidence was that he and a friend were drinking in a hotel when “we just bumped shoulders” with two other patrons. Words were exchanged and the Applicant and his friend followed the other two patrons outside where a fight ensued. The Applicant admitted that he threw the first punch.[40]
[40] transcript at 21.
In relation to his driving offences and driving an unlicenced vehicle, the Applicant admitted that he repeatedly offended and that it was only when the police impounded the unlicenced vehicle that he stopped driving.[41] The Applicant basically admitted that he had no excuse for his repeat driving offences and that to commit those offences as he did was “immature”, and he apologised for that.
[41] transcript at 23.
This consideration requires me to consider the Applicant’s “criminal offending or other conduct”. While he does not have a conviction for an offence which would come within the definition of family violence (as that term is defined on para 4(1) of Direction 90), there was evidence before me that he had engaged in conduct which would come within that definition. This was the case notwithstanding that, as Mr Burgess conceded, the Minister’s SFIC had not raised family violence as an issue.[42]
[42] transcript at 6.
In examination-in-chief, the Applicant was asked about a restraining order that had been taken out against him in Queensland by his then-partner. His evidence was that the order was for a duration of 72 hours and that his partner had told police that he had hit her across the face. He denied that he had hit her, but he did admit to “restraining her and grabbing her by the arms”.[43]
[43] transcript at 14.
In cross-examination he expanded on that explanation and described what he did as follows:
APPLICANT: I grabbed her by the arms - grabbed her by the arms. She was in - she was in my face at the time when we were in a heated argument. I grabbed her by the arms to move her out of my way.
COUNSEL: You also pushed her?
APPLICANT: Not pushed her as in forcefully pushed her, pushed as in move to the side so I can get past, but not as in push so she falls to the ground kind of.
While the Applicant was not charged with an offence arsing out of that incident, his action of grabbing his partner and moving her to the side would constitute an assault. I asked Ms Graziotti whether she wished to make a submission on this incident and whether it constituted family violence. Her submission was:
He said he didn't believe that he had hit her across the face, and I do acknowledge that no charges or other evidence was noted by the police. However, I do think that this could be considered an incident of family violence as it was a physical altercation in an intimate partner relationship.[44]
[44] transcript at 52.
In relation to the nature and seriousness of the Applicant’s conduct, the Minister contends that the Applicant’s offending should be viewed as very serious because:
(a)The various offences for which the Applicant was convicted in early 2020 revealed him to have been, in the words of the sentencing judge, “engaged in the dissemination of drugs in the community to other users at a commercial level”. The Tribunal should accept the sentencing judge’s characterisation of the offending as “very serious”.
(b)The Applicant has committed approximately 30 speeding offences which suggests that he does not hold the law, or the safety of other members of the Australian community, in high regard.
(c)The Applicant has been sentenced to terms of imprisonment for his offending and terms of imprisonment are the last resort in the sentencing hierarchy.
(d)The Applicant committed 19 criminal offences and dozens of traffic offences in slightly less than a decade with a trend of increasing seriousness and his behaviour must be seen as, cumulatively, having had a deleterious impact on the Australian community.
(e)Two incoming passenger cards completed by the applicant did not disclose his criminal offending and his explanation of not understanding the question is unconvincing.
The Applicant contends that:
(a)He is aware of the serious nature of his drug offences, and that the law takes an extremely serious view of people who deal in illicit substances due to their effect on families, relationships, health, the justice system and the community in general.
(b)He has not been convicted of any violent or sexual crimes. He has no convictions for acts of family violence and has never been charged with committing an act of family violence.
(c)He has not committed any crimes against vulnerable members of the community such as the elderly or the disabled, or government representatives or officials due to the position they hold.
(d)There is no evidence the Applicant has committed any offences while in immigration detention.
(e)In relation to the sentences imposed by the courts:
(i)The maximum penalty available for the LSD offence was 25 years' imprisonment or a $100,000 fine or both. The Applicant was sentenced to two years' imprisonment for this offence, backdated and with eligibility for parole.
(ii)The maximum penalty available for the cannabis offence was a term of imprisonment of up to 10 years or a fine of $20,000 or both. The Applicant was sentenced to 12 months' imprisonment, to be served concurrently.
(iii)The maximum penalty available for the stolen property conviction was a term of imprisonment of up to seven years. The Applicant was sentenced to nine months' imprisonment, to be served cumulatively.
(iv)The total effective sentence for the 2018 offences was two years and nine months' imprisonment. The Applicant served half this sentence before being released on parole. He continues to be subject to the parole order until 26 October 2022.
(f)In relation to the Applicant’s failure to declare his New Zealand conviction on his incoming passenger card, the Applicant made a genuine mistake and the offences which he failed to disclose would not have caused the Applicant to be a "behaviour concern non-citizen" or otherwise changed his eligibility to be granted a visa upon entry.
(g)The Applicant also accepts that he made submissions to the Department representing that he had never been subject to a Violence Restraining Order, not realising at the time he made these submissions that the 72-hour order placed on him on 14 July 2013 was a restraining order.
(h)The Applicant does not have a pattern or history of committing offences involving sell and supply of drugs that would cause his overall criminal history to fall into this "most serious crimes" category.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, the relevant subparagraphs are (a)(iii), (c), (d), (e) and (f). I comment on those considerations as follows:
(a)(Paragraph 8.1.1(1)(a)(iii)) – As noted earlier, while I am satisfied that there was an incident involving the Applicant’s then-partner in 2013 which would qualify as family violence, it was at the lower end of the scale of seriousness and occurred over eight years ago.
(b)(Paragraph 8.1.1(1)(c)) – The sentences imposed have been at the lower end of the sentencing scale available for each of the offences.
(c)(Paragraph 8.1.1(1)(d)) – While the Applicant has been convicted of a reasonably significant number of offences over a ten-year period, there have been extended periods when the Applicant did not offend, and multiple offences arose out of the same incidents; 11 of the Applicant’s convictions arose from the search of the Applicant’s house undertaken by the police in 2018. As those offences were clearly the most serious of the Applicant’s convictions, it would be fair to say that there was a trend of increasing seriousness in the Applicant’s offending.
(d)(Paragraph 8.1.1(1)(e)) – It is difficult to discern any obvious cumulative effect of the Applicant’s repeat offending other than it tending to indicate that in the past he has had a disregard for the law or has been easily influenced into offending behaviour.
(e)(Paragraph 8.1.1(1)(f)) – The Applicant’s failure to disclose his convictions on his incoming passenger declaration and in his submissions to the Department are at the low-end of the scale of seriousness and I accept his explanation that there were caused by oversight or carelessness. In both cases I do not think that the non-disclosure was a calculated effort to deceive the Department given that that which he failed to disclose was readily ascertainable (and was ascertained) by the Department.
I consider that the appropriate description of the Applicant’s criminal offending and other relevant conduct is serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
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).
The Tribunal in CZCV and Minister for Home Affairs[45] summarised the task for the Tribunal 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.
[45] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 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.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation (or non-revocation of cancellation) in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Applicant accepts that the nature of the harm to the Australian community should he commit similar offending is serious.[46] As the Applicant points out, that “is necessarily the case for any person who fails the character test as set out in section 501(6)(a) as the person must always have committed an offence serious enough to warrant an immediate term of imprisonment.”
[46] Applicant’s SFIC para 73.
Having made that observation, the Applicant’s SFIC at para 75 goes on the say that he accepts that “if he were to reoffend in a similar way to the 2013 offences, it could result in physical harm to people in the community or damage to property”. Given that the Applicant was not, as far as his record[47] indicates, convicted of an offence in 2013, I am not sure to what that submission is referring. In closing, however, Ms Graziotti said:
We don't dispute that the distribution of any illegal drug is serious, regardless of what the drug is, and that that can result in psychological and financial harm to members of the Australian community. In terms of the driving offences, the applicant acknowledges that the potential harm caused were he to commit further speeding or driving offences could place other road users at risk.[48]
[47] R1, G5.
[48] transcript at 46.
Ms Graziotti made no submission on the nature of the harm that might be caused if the Applicant were to engage in family violence.
The Minister submitted that the nature of the harm that would be caused if the Applicant were to reoffend by engaging in the sale of illegal drugs is serious and is likely to involve significant physical, psychological and financial harm to members of the Australian community, citing the passage from Stevenson DCJ’s sentencing remarks about the harm that drugs cause to the community quoted at [54] above. The Minister also cited my comments at [40] of Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[49] adopting the summary of Lonsdale DCJ’s comments in sentencing Mr Jacobs that:
It is the experience of these courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State.
And that is either as a result of users acting under the influence, or because of their need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.
[49] [2020] AATA 1524.
The Minister also referred the Tribunal’s comments of driving offences, in particular drink-driving offences in Safar and Minister for Immigration and Border Protection[50] at [28].
[50] [2021] AATA 503.
The sort of harm that is caused by drug use, facilitated by drug dealing, is set out in the respective comments of Stevenson DCJ and Lonsdale DCJ quoted above. I am also conscious of the Department of Health National Drug Strategy 2017–2026,[51] which notes that the Australian community faces both direct and indirect harm from drugs, including mental health trauma, violence or other crimes, engagement with the criminal justice system more broadly, and healthcare and law enforcement costs.
[51] Department of Health, National Drug Strategy 2017–2026 (18 September 2017).
In relation to the Applicant’s driving offences, while the consequences of those incidents and the harm caused have not to date been significant, that is not an indicator of the nature of the harm that can be caused by such offending. In that regard I refer to the observations of Colvin J in JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[52]
42. It does not follow from the fact that particular consequences may be associated with more serious offending that they are not also consequences to which the community is exposed by lesser offending. There are many instances where the same act results in more serious criminal liability because of the consequences. A person who swings a punch and misses the mark will commit a lesser offence than if the same punch was to hit the face of a person, break their jaw and send them unconscious to the ground fracturing their skull. The risk of serious harm is present in both factual scenarios. If the risk manifests then the same act will amount to a more serious offence.
43.Further there are many instances, and drink-driving is an example, where the risk of serious consequences is the reason why the lesser offence exists. In effect, the purpose of the lesser offence is to discourage conduct which, in some but not all instances, will have serious consequences. These matters were recently addressed by McKerracher J in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266. In that case, a submission was advanced to the effect that there was error in applying Direction 79 to conclude that there was a risk of harm from future re-offending when there had not been serious harm from the applicant's past offending (which the Tribunal found he was at risk of repeating).
[52] [2021] FCA 762.
I also take into account the family violence in which I have found that the Applicant engaged. The nature of the harm that is caused by family violence, particularly violence against a partner, is serious, wide-ranging and far-reaching. Not only is the direct victim of such violence affected physically and often psychologically, but the potential for harm to others; children, family members and other members of the public is obvious. This is recognised by Direction 90 placing family violence into the category of primary considerations. I deal with that consideration in more detail under the relevant heading below.
I find that the nature of harm to individuals or the Australian community if the Applicant were to offend or repeat the serious behaviour in the way that he has in the past, is serious, not only to individuals in the community, but also to the Australian community as a whole.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The Applicant submits that his risk of reoffending in a similar manner to the 2018 offences is low for the following reasons:
(a)The 2018 offences took place when he was 29 years old. He is now 33 years old and has the benefit of increased maturity and insight into his offending.
(b)The Applicant has not committed a violent offence in over 11 years. While the public nuisance offence involved a physical altercation, no conviction was recorded, and the Applicant has no other convictions involving violent offences.
(c)The Applicant was granted bail three days after being arrested and he abided by his reporting conditions and curfew between June 2018 and January 2020.
(d)The Applicant's driver's licence has been reinstated so he is not at risk of driving without a licence. Further, he has not committed any driving offences (including speeding or driving without a licence) since September 2017, despite being present in the Australian community until 27 January 2020.
(e)The Applicant had never been sentenced to a term of imprisonment before. He is not a serious recidivist offender, and after being charged with the 2018 offences he did not commit any other offences despite being present in the Australian community for a further 19 months.
(f)The Applicant engaged in voluntary rehabilitation programs while incarcerated, including:
(i)ADAPT Methamphetamine course;
(ii)Narcotics Anonymous meetings;
(iii)Alcoholics Anonymous meetings;
(iv)Small Business Development course;
(v)WOW Outcare program;
(vi)Standing on Solid Ground;
(vii)units towards a Certificate II in Hospitality and Catering;
(viii)Certificate I in Entry to General Education; Apply Workplace Health and Safety Concepts;
(ix)Food Handler Training Program and Foodstars level one;
(x)Certificate II in Logistics; work in a socially diverse environment, follow work health and safety procedures, receive goods, despatch stock, shift materials safely using manual handling methods, pick and process orders, deliver a service to customers, check and assess operation capabilities of equipment, apply chain of responsibility legislation, regulations and workplace procedures, maintain freight records, licence to operate a forklift truck;
(xi)Certificate I in Sport and Recreation; provide first aid;
(xii)course in Gaining Access to Training and Employment (GATE) (Introductory); personal development;
(xiii)Prepare and serve espresso coffee;
(xiv)Enter and work in confined spaces;
(xv)Work Zone Traffic Control – traffic controller skill set; communicate in the workplace, work safely and follow WHS policies and procedures, implement traffic management plan, control traffic with stop-slow bat; and
(xvi)units towards Certificate II in Kitchen Operations (traineeship).
(g)The Applicant was also employed throughout his incarceration in the kitchen at Karnet Prison farm as a basic then general worker.
(h)The Applicant was assessed as "a low risk of re-offending, as such no [General Offending] program [or similar] will be offered”.[53]
[53] Parole Review Report, R2, 138.
(i)The Applicant's Pre-sentence Report (dated 29 October 2019) stated: "[the Applicant] took responsibility for his offending behaviour and acknowledged his own drug use had been a contributing factor”.[54]
[54] Department of Justice Management and Placement – Sentenced report, R2, 229.
(j)The Prisoners Review Board made an assessment on 18 May 2021 that the Applicant was “assessed as a low risk of reoffending”, had “no previous history of violence and...positive prison conduct”, that his release into the Australian community “would present an acceptable risk to the safety of the community” and his release into the New Zealand community “does not pose an unacceptable risk to the safety of that community” if his revocation request is unsuccessful.
(k)The Applicant is aware of the consequences that any future behaviour would have on his migration status and on his relationship with his close friends in Australia (who he considers to be his family).
(l)The Applicant has a positive employment history and has been offered employment in a plastering business upon release. He has engaged with ReSet and explored options for seeking employment immediately upon release. He further has accommodation plans which were approved by the Prisoners Review Board and is aware of transitional support available in the community.
(m)The Applicant has demonstrated a significant change in his mindset and attitude towards the 2018 offences, whereby he has accepted responsibility for his offending and made significant changes to his lifestyle.
(n)He did not return any positive substance test results (including alcohol) between 30 January 2020 and 11 October 2021.
(o)His relationship with prosocial friends in Australia improved significantly after he was charged with the 2018 offences. His friends are now aware of his drug use and are equipped to support him with his re-entry into the Australian community.
(p)A Risk of Reoffending – Prison Version (RoR-PV) assessment was administered by an Acacia Prison treatment assessor and the Applicant was given a score of 5 (the highest score available being 22).
(q)The Applicant also points to his time in prison and immigration detention and to the prison officers’ report that the Applicant was “respectful to staff and his peers and...[he] interacts positively with staff and his peers.” He had one incident on the prison system due to being found in possession of a single unauthorised Panadol tablet following the extraction of three of his teeth. He was classified as a minimum-security prisoner.
(r)The Applicant has made significant changes to his lifestyle and attitude since he was charged with the 2018 offences. He spent 19 months in the community on bail during which time he worked, ceased using drugs and changed his peer group, reverting to his longer-standing prosocial friends. These changes were confirmed by the statements and the oral evidence given by his friends.
(s)The Applicant has demonstrated insight and remorse.
The Minister contends that the Tribunal should conclude that the risk of further offending by the Applicant is significant and unacceptable. He points to Stevenson DCJ’s identification of the causal factors in the Applicant’s drug related offending that:
This was not a one-off opportunistic offence. The offending is consistent which is accepted by you with all of the other evidence located at the time with you being a user/dealer for commercial purposes in part to fund your own drug habit and also in part to fund your own lifestyle because at various times you were not working and because you were a citizen of New Zealand, you were unentitled whilst unemployed to unemployment benefits in this country.
The Minster says that the following matters are relevant in assessing the likelihood of the Applicant committing further drug related offences:
(a)The Applicant partly attributes his offending to his own drug addiction. He has been using cannabis since he was aged 11 and methylamphetamine since he was aged 15 or 16. The entrenched nature of the Applicant’s addiction should militate against a conclusion that he presents an acceptable risk of reoffending.
(b)The volume of drugs involved suggests that the enterprise went beyond being used simply to pay for the Applicant’s own drug use and living expenses. If the link between the Applicant’s drug dealing and drug using is not absolute, then the Tribunal should conclude that the Applicant presents a risk of further drug offending even if it is satisfied that he has rehabilitated from his drug addiction.
(c)The commercial volume of drugs involved in the Applicant’s offending also militates against acceptance of the Applicant’s claims that he obtained the drugs to address his depression and anxiety.
(d)This is not the first time that the Applicant’s drug use has negatively affected his life. He lost a job he had at a mine because he failed a drug test. He had also received punishments for drug offences prior to the date on which he committed the offences that led to the visa cancellation. The fact that negative consequences have not stopped the Applicant’s drug use in the past suggests the consequences of his most recent drug offending may also fail to effectively operate as a deterrent.
In relation to the Applicant’s repeat driving offending, the Minister submits that the Applicant has made no representations in relation that topic and in the absence of any probative evidence addressing the cause of that offending, and confirming any such cause has been addressed, there is the very real possibility that the risk of him engaging in further offences of that kind is significant.
As I noted above, the Applicant’s offending appears to be episodic, interposed by not insignificant periods of law-abiding behaviour. After the offence of committing a public nuisance in 2010, there is a nearly five-year gap before the possession of cannabis and driving with a prescribed illicit drug charges in 2015. There is then a gap of over two years before the four driving offences in 2017 and the more serious drug offences (with the minor offence of trespass) in 2018.
I do accept that the Applicant has shown remorse and insight. In giving evidence he presented as sincere and honest. I also accept that he has undertaken extensive rehabilitation and has earnestly engaged in the courses that were available to him. I was also impressed by those who gave evidence in support of the Applicant and accept that their support and influence would be a significant factor in keeping the Applicant from returning to his use of drugs and the inevitable offending that follows.
I take particular regard of the fact that the Applicant spent 19 months in the community after his arrest on the drug charges during which time he maintained employment and re-associated with his prosocial peers. I also take notice of the fact that during his time in prison and in immigration detention his conduct has been good, with one minor exception being the unauthorised possession of a Panadol tablet. He appears to have genuinely and enthusiastically availed himself of every opportunity to improve and to equip himself for a productive, law-abiding life after his release.
Another circumstance that would, in my view, reduce the likelihood of the Applicant reoffending is that, if he is released into the community, he will be subject to the terms of the parole order up until October 2022.[55] Those terms include participation in programs and counselling if directed, random urinalysis for all illicit substances and a prohibition on the Applicant entering licensed premises (with the exception of restaurants, sporting venues and the like). While the measures will cease to operate after October 2022, the fact that he will be subject to drug testing and excluded from licensed premises up to that time will be further incentive for the Applicant to establish and maintain a law-abiding lifestyle.
[55] R2, 167.
Taking all of these factors into account, I assess the likelihood of the Applicant reoffending as low.
While the consequences to the community, or a member of the community, if the Applicant were to reoffend could be significant, the likelihood of the Applicant engaging in further criminal conduct is sufficiently low to make the risk not an unacceptable one.
Because of the seriousness of the Applicant’s offending and the potential harm that would result if the Applicant were to deal in drugs again, this first primary consideration, the protection of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa. However, because the risk of the Applicant engaging in criminal conduct of the sort that he has in the past is so low, in my assessment only moderate weight should be given to this consideration.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 relevantly (to this case) 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
…
(Original emphasis.)
As I noted above, the Applicant has engaged in family violence which appears to be accepted by Ms Graziotti (see [64] above).
In looking at the matters to be taken into account under para 8.2(3) of Direction 90 when assessing the seriousness of the family violence:
(a)There is only evidence of a single incident in 2013. Accordingly, there is no trend of increasing seriousness[56] or a cumulative effect.[57]
(b)It is difficult to assess the factors referred to in para 8.2(3)(c). The Applicant’s evidence was that he would not hit a woman,[58] however did admit to “restraining her and grabbing her by the arms” and moving her to the side (see [62] above). While any assault against a woman is serious, the Applicant’s actions fall at the low end of seriousness, evidenced by the fact that the police did not bring any charges.
[56] Direction 90 para 8.2(3)(a).
[57] Direction 90 para 8.2(3)(b).
[58] transcript at 14.
While this consideration weighs against the revocation of the cancellation of the Applicant’s visa, because the act of family violence falls at the extremely low end of the scale of such violence, appears to have been a one-off incident and was over eight years ago, only minor weight is to be given to this consideration.
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.
In his Personal Circumstances Form,[59] the Applicant identified the daughter of his then (now former) partner as a minor child of his.[60] He further listed the daughter of a friend as being an “other minor child” whom he described as his niece.[61]
[59] R1, G9.
[60] R1, G9/53.
[61] R1, G9/56.
In his SFIC the Applicant advised that he was no longer in a relationship with Ms S, the mother of the first of the above-mentioned children referred to at [21] above, and that he therefore “does not press his representations relating” to that child.[62] By para 91 of the Applicant’s SFIC, the Applicant submitted that he “is very close to his ‘niece’”, being the second of the above-mentioned children. He says that during his time in the community he saw her regularly and anticipates that he would play an uncle-type role in her upbringing in future.
[62] Applicant’s SFIC para 90.
The Applicant does concede, however, that due to this child’s young age and the length of time that he has already been absent from her life, this factor will have less weight. Nevertheless, he contends it weighs “somewhat” in favour of revoking the cancellation of his visa due to his close relationship with the child’s father and the positive involvement he wishes to have in the child’s life.[63]
[63] Applicant’s SFIC para 92.
The Minister contends that the second of the above-mentioned children, the only child in relation to whom the Applicant now makes a relevant claim, was born some eight months before he went to prison and that the brevity of the relationship, combined with the child’s tender age and the fact that she appears to have both of her biological parents involved in her life, suggests that little if any weight should be placed in the Applicant’s favour by reference to this child.
The factors identified in para 8.3(4) of Direction 90 all point to this consideration being only marginally relevant in the present case. There is only one child, she is too young to know the Applicant in any meaningful way and the relationship has been of the briefest duration (certainly before the Applicant was imprisoned).[64] There is no evidence that the Applicant is likely play a positive role in the child’s life,[65] there is no evidence of the likely effect that separation from the Applicant is likely to have,[66] and others are fulfilling parental roles.[67]
[64] Direction 90 para 8.3(4)(a).
[65] Direction 90 para 8.3(4)(b).
[66] Direction 90 para 8.3(4)(d).
[67] Direction 90 para 8.3(4)(e).
While I find that this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, for the reasons set out above, I agree with the Minister’s assessment that little weight should be given to this consideration. I find that this consideration weighs very marginally in favour of revocation of the cancellation of the Applicant’s visa, and therefore that it should be given minor weight.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition ... non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Tribunal also refers to the principles set out in para 5.2 of Direction 90 as set out in [44] above.
As noted at [42] 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[68] at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction 65,[69] 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.[70]
[68] [2021] AATA 1143.
[69] 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).
[70] [2019] FCAFC 185; (2019) 272 FCR 454.
Senior Member Morris at [195] and [196] of 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 respectfully agree with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[71] I summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
[71] [2020] AATA 3953.
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.
158.Justice Stewart in FYBR (FC) 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) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 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.
159.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.
160.Member Burford put it in Rehman as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
(Footnotes and 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, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa.
I must, however, determine what weight should be given to this consideration. Some guidance in this regard is provided by para 8.4(2) Direction 90 (see [105] above) which provides that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.4(2)(a)–(f).
In the present case only sub-para (a): acts of family violence is relevant. The Applicant’s SFIC contended that none of the factors identified in sub-paras (a)–(f) applies. I do not accept that contention. I have found that the Applicant has engaged in family violence, albeit a single incident at the low end of the scale of seriousness and committed over eight years ago.
The Applicant accepts that this factor is likely to weigh slightly against revocation, given judicial authorities on the formulation of this consideration as it appeared in previous directions; citing, for example, FYBR. The Applicant contends that this consideration should be given little weight in light of his demonstrated change in lifestyle and attitude, and low risk of reoffending.
The Minister contends that this consideration must weigh against the revocation of the cancellation of the Applicant’s visa and submits that “in accordance with the guidance provided by Principles 5.2(1)–(5) of Direction 90, the Australian community would expect that the applicant should not continue to hold a visa on account of his past offending and the risk of further offending and consequential infliction of harm.”[72] He then contends that “[t]his primary consideration weighs heavily against revocation”.[73] The Minister does not, however, provide the basis upon which he contends that this consideration should weigh heavily against revocation.
[72] Minister’s SFIC para 45.
[73] Minister’s SFIC para 46.
In closing I asked Mr Burgess to explain why this consideration should weigh heavily as claimed by the Minister. His response was that:
In this case, the [A]pplicant has been involved of acts of family violence, which is the first, in 8.4(2)(a) - -
…
… The [A]pplicant … has not been in Australia for a significant amount of time. We would say that weighs in - that would influence the expectations of the Australian community. And the [A]pplicant has clearly engaged in serious criminal conduct in breach of the expectation that he obey Australian laws whilst in Australia. In light of that, the expectation as a whole would be that the [A]pplicant not be allowed to retain his visa.[74]
[74] transcript at 62.
As noted above, due to the application of the “norm”, and the deeming operation of the consideration as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa. I do not agree with the Minister’s submission that this consideration weighs heavily against the revocation of the cancellation of the Applicant’s visa. In this case the only factor that could give this consideration any significant weight under the factors identified in para 8.4(2)(a)–(f) is the single incident of family violence. For the reasons that I have set out in addressing that specific consideration, only minor weight should be given to that element of the Applicant’s conduct. Given the low risk of the Applicant reoffending, the particular circumstances of the Applicant and the nature of his offending, along with his efforts at rehabilitation and his demonstration of being able to be in the community without offending and his contribution to the community through employment, only minor weight should be given to this primary 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)
The Applicant does not raise any non-refoulement claims[75] and the Minister submitted that the only relevant “other considerations” are the extent of impediments if removed and links to the Australian community.[76]
[75] Applicant’s SFIC para 96.
[76] Minister’s SFIC para 47.
I agree that international non-refoulement obligation is not a relevant consideration in this case.
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.
The Applicant’s SFIC made the following submissions:
(a)He has been living full-time in Australia since he was 21 years old. He is now 33 years old and has been living in Australia for almost 12 years.
(b)While he visited New Zealand for two short holidays in 2014 and a four-month period in late 2015, he has considered Australia to be his home since January 2010. He has little to no relationship with his biological family – noting that his youngest sister does not even acknowledge him as a brother.
(c)The Applicant accepts that he faces no major barriers due to his age or health and is unlikely to face long-lasting cultural barriers if returned to New Zealand. He also accepts that he will be entitled to social security and medical care at the same level as other New Zealand citizens.
(d)However, the Applicant considers his family to be his close friends living in Western Australia and he is deeply fearful of losing their support and losing the home and employment connections he has built for himself over the last decade.
(e)His friends have who have given statements have expressed similar concerns.
The Minister contends that:
(a)The Applicant has claimed mental health issues[77] but they are undiagnosed,[78] and those issues do not appear to have had the effect of disabling him from employment in the past.
(b)The Applicant spent the first 21 years of his life in New Zealand and has visited on several occasions since he began living in Australia.
(c)His immediate family live in New Zealand and may be able to assist him to resettle.[79] The Applicant suggests that he is not close with his family in New Zealand, however, the evidence does not reveal whether the Applicant has reached out to his family to ascertain what support they could provide him if he were to return to New Zealand.
(d)There are no language or cultural barriers for the Applicant to overcome and he will have access to New Zealand’s social, medical and economic support systems which, the Tribunal can infer are of an equivalent quality to those available in Australia.[80]
(e)The Applicant has worked in various industries in the past and is likely to have gained employment skills that will be transferable to New Zealand. The vocational training the Applicant has undertaken in prison and detention may also assist him to find employment in New Zealand.
(f)This factor does not weigh in favour of revocation.
[77] Citing R1, G9/68.
[78] Citing R1, G9/65.
[79] Citing R1, G9/58.
[80] Citing Webb v Minister for Home Affairs [2020] FCA 831 at [87]–[88], [98].
The Applicant raised the issue of the impact on the Applicant’s mental health if he is forced to return to New Zealand. In closing, Ms Graziotti referred to concerns that the Applicant and his friends had raised in their evidence in this regard. She said that their concern was that his removal “would put him in a dark place and it would reignite some of the trauma he experienced as a child growing up in a dysfunctional family” and that he was “most anxious about the loss of what he considers to be his only family. This family has shown that it is willing and capable of supporting him in his commitment to a crime free life in Australia and he's petrified of losing that.”[81]
[81] transcript at 49.
I agree that the thrust of the evidence was to the effect as outlined by Ms Graziotti. In light of that, I asked Ms Graziotti the following question:
… in relation to the extent of impediments if removed, there's really no medical evidence, is there, that would suggest that the [A]pplicant's mental state would be such that it would be an impediment to him being able to establish and maintain a basic living standard, which is the test, isn't it? It's a fairly low test.
…
Is there any evidence that - clearly there's no physical problems, but if one is looking solely at the criteria as set out in 9.2, is it the [A]pplicant's case that his mental condition could be impediment, which would come within the operation of 9.2?
Ms Graziotti responded:
I suppose the difficulty with that representation is that we agree there is no medical evidence before the [T]ribunal.
….
So, I didn't want to press that too far in the absence of a psychologist report or a GP letter, or anything, essentially, other than anecdotal evidence.
In the end, other than the Applicant (and his friends) being anxious about his establishing himself in New Zealand, there was no evidence before me from which I could draw a conclusion that the Applicant would face impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account the matters identified in para 9.2(1) of Direction 90. I am also not satisfied that such anxiety or the mental difficulties that the Applicant might encounter if he were to be returned to New Zealand would, in themselves, be “another reason why the original decision should be revoked”.[82]
[82] The Act s 501CA(4)(b)(ii).
I agree with the Minister’s submission that this consideration does not weigh in favour of revocation.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
(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 any submission on this consideration.
The wording of this consideration is materially the same as that of para 14.4 of Direction 79. As I noted in respect of the same provision in Direction 79 in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[83] at [109]–[111] and in Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[84] at [138]–[139], although para 9(1)(c) of Direction 90 and the heading to para 9.3 refer only to impact on victims, para 9.3(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community, including victims (emphasis added).
[83] [2020] AATA 4171.
[84] [2020] AATA 5165.
Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. a decision not to revoke) is also considered below in the consideration of the Applicant’s links to the Australian community under para 9.4 of Direction 90 and in considering the best interests of minor children under para 8.3. Insofar as the impact on those members of the Australian community is to be considered, I do so under those considerations. I note that this approach is consistent with that taken by White J in Filipovich v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[85] at [49] onwards.
[85] [2021] FCA 846.
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.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant submits that:
(a)He does not have any immediate biological family members in Australia. Instead, he considers his friends in Western Australia to be his family.
(b)He has been living in Australia full-time for more than 11 years. He arrived as a 21-year-old man, and while he accepts that he committed the public nuisance offence six months after his arrival, no conviction was recorded and he did not reoffend in any other manner for approximately five years after settling in Australia.
(c)He has positively contributed to the Australian community through his employment in various industries and his investment in improving his skillset in order to secure reliable future employment in Australia. He was gainfully employed up until he was incarcerated. He demonstrated a clear willingness and ability to not reoffend after being charged with the 2018 offences.
The Minister contends that:
(a)While the Applicant has lived in Australia for 11 years, less weight should be given to the length of his residence in Australia because he began offending essentially as soon as he arrived.
(b)The Applicant appears to have made some positive contributions to the Australian community through his periods of employment.
(c)The Applicant has provided letters from friends that live in this country. While it can be accepted those people wish the Applicant to be able to continue to live in Australia and would be emotionally impacted if he were to be removed, there is no basis upon which the Tribunal could conclude that the Applicant’s removal would inflict irreparable hardship on any of those people.
The numerous statements and letters of support provided by the Applicant, along with the evidence of the Applicant and those who gave oral evidence in support of the Applicant, show that the Applicant has significant ties to the Australian community. It is clear from the evidence of those mentioned above that there would be an emotional impact on them if the Applicant were to be deported. There is no evidence that anyone in Australia would be financially impacted if the Applicant’s visa were to remain cancelled. I accept that the Applicant’s only social links and those who would support him are in Australia.
While this consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, for the reasons identified by the Minister above at [135], only minor weight should be given to this consideration.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Neither party made any submissions on this consideration and I find that it is not relevant to the present case.
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 (see [46] above).
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[86] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[87]
[86] [2018] FCA 594; (2018) 74 AAR 545.
[87] [2018] FCAFC 217; (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.[88] At [21] Wigney J cited [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 omitted.)
[88] [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.)
I adopt the interpretation of Wigney J’s above comments set out in my decision in WCFW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[89] at [151] and [152].
[89] [2021] AATA 3797.
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. ...
I adopt the approach directed by the above cases.
Looking at the first primary consideration, the protection of the Australian community, while this consideration weighs against the revocation of the cancellation of the Applicant’s visa, for the reasons set out above, particularly the low risk of the Applicant re-offending, only moderate weight should be given to this consideration.
The second primary consideration, family violence, weighs against the revocation of the cancellation of the Applicant’s visa, however for the reasons set out above (see [97]) minor weight is to be given to this consideration.
In relation to the third primary consideration, I find that the best interests of a minor child, would be served by the Applicant being allowed to stay in Australia. However, while this consideration weighs in favour of revocation of the cancellation, I find that it does so only marginally and therefore only minor weight should be given to this third primary consideration (see [104] 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. For the reasons set out above, only minor weight should be given to this consideration (see [116] above).
In relation to the relevant “other considerations” identified in Direction 90, the consideration of the extent of impediments, while relevant, for the reasons set out above, does not weigh in favour of revocation of the cancellation of the Applicant’s visa and, while the consideration of the links to the Australian community weighs in favour of revocation of the cancellation, only minor weight should be given to it.
This is a slightly unusual case under this section of the Act in that a number of the considerations set out in Direction 90 are not relevant to the present case, and those that are relevant do not weigh particularly heavily either way. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against the revocation of the cancellation of the Applicant’s visa, I find that the considerations against revocation of the cancellation of the Applicant’s visa marginally outweigh those in favour of revocation. Accordingly, I find that there is not another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 13 September 2021 not to revoke the mandatory cancellation of the Applicant’s Class TY (Subclass 444) Special Category visa pursuant to s 501CA(4) of the Migration Act is affirmed.
I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
...[SGD].....................................................................
Associate
Dated: 9 December 2021
Date of hearing: 26 November 2021 Counsel for the Applicant: Ms A Graziotti Solicitors for the Applicant: Estrin Saul Lawyers Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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