TNJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 10

TNJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 10 (9 January 2020)

Division:GENERAL DIVISION

File Number:          2018/0958

Re:TNJG  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:The Hon. John Pascoe AC CVO, Deputy President

Date:9 January 2020

Place:Sydney

The reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa.

.................................[sgd].......................................

The Hon. John Pascoe AC CVO, Deputy President

CATCHWORDS

MIGRATION – review of decision to not revoke mandatory cancellation of visa under Migration Act – where applicant does not pass the character test – whether there is another reason why the mandatory cancellation should be revoked – consideration of Direction no. 79 – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations – where applicant has been found to be owed protection obligations – international non-refoulement obligations – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) – ss 36, 48A, 48B, 197C, 198, 501, 501CA, 501E

CASES

CWGF v Minister for Home Affairs [2019] FCA 1802

DMH16 v Minister for Immigration and Border Protection [2017] FCA 448

FYBR v Minister for Home Affairs [2019] FCAFC 185

Le v Minister for Immigration and Border Protection [2016] FCAFC 120

SECONDARY MATERIALS

Direction no. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

The Hon. John Pascoe AC CVO, Deputy President

9 January 2020

1. The Applicant is a citizen of the Philippines who arrived in Australia on 30 November 1985. At that time he was 14 years of age. He returned to the Philippines on 19 August 1992 for a period of six years and returned again from 1999 to 2000 for a period of 10 months. Other than the period when he returned to the Philippines, the Applicant has been a resident of Australia.

2. The Applicant was the holder of a Class BB (Subclass 155) Five Year Resident Return visa and on 23 June 2017, the Minister’s Department (the Department) issued a notice to the Applicant that his Visa had been mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).

3. On 24 June 2017, the Applicant made representations seeking revocation of the cancellation decision.

4. On 19 February 2018 the delegate decided under section 501CA(4) of the Act not to revoke the mandatory cancellation and the Applicant was notified of the decision on 19 February 2018.

5. On 28 February 2018 the Applicant sought review of that decision by the Tribunal. On 11 May 2018 the Tribunal, differently constituted, affirmed the decision under review.

6. On 9 July 2018 the Applicant sought judicial review of the Tribunal’s decision in the Federal Court of Australia and on 5 July 2019 the matter was remitted to this Tribunal to be determined according to law.

7. On 20 February 2019 the Applicant’s application for a protection visa was refused. While it was found that the Applicant is a person to whom Australia owes protection obligations under sections 36(2)(a) and (aa) of the Act, the visa was refused on character grounds under section 501(1).

   RELEVANT LEGISLATION

8. Section 501(3A)(a)(i) of the Act states that the Minister must cancel a visa that has been granted to the person if they are satisfied that the person does not pass the character test due to them having a substantial criminal record in accordance with section 501(7)(c), and that they are serving a full-time sentence of imprisonment for an offence.

9. Section 501CA(4) gives the Minister a discretion to revoke the mandatory cancellation of a person’s visa if:

   (a)the person makes representations in accordance with the invitation given by the Minister under section 501CA(3)(b); and

   (b)the Minister is satisfied that the person either passes the character test (section 501CA(4)(b)(i)) or that there is another reason why the cancellation decision should be revoked (section 501CA(4)(b)(ii)).

10. When considering whether or not to revoke a mandatory cancellation decision under section 501(CA)(4), decision-makers are required to comply with Part C of Direction no. 79 (‘the Direction’), which replaced the earlier Direction no. 65 on 28 February 2019.

    THE ISSUES

11. It was not contested that as a matter of law, the Applicant does not meet the character test according to section 501(6)(a) of the Act as the Applicant has been sentenced to a term of imprisonment of 12 months or more and therefore has a ‘substantial criminal record’ as defined in section 501(7)(c). Therefore, the sole issue to be decided by the Tribunal is whether there is another reason why the original decision should be revoked in accordance with section 501CA(4)(b)(ii).

    EVIDENCE

    The Applicant

12. The Applicant gave evidence that he arrived in Australia as a child. He returned to the Philippines for an extended period, but has lived permanently in Australia since 2000.

13. Under cross-examination the Applicant gave evidence that he had started using the drug ‘ice’ when he was in the Philippines, where he was introduced to the drug by a member of his family. He said that he started off using ice approximately once a week, but after approximately a year he began using it once a day. He said that he used ice most of the time that he was in the Philippines. He also said that he made a significant effort to hide his drug use from his family.

14. The Applicant gave evidence that during his time in the Philippines he had virtually no contact with his two eldest children.

15. The Applicant said that he stopped using ice before his return to Australia. He did not use the drug when he first returned to Australia, but started using it again after his separation from his then partner in around 2001/2002.

16. In 2004 he was convicted for assault and breach of an Apprehended Violence Order (‘AVO’) as part of an incident of domestic violence. The Applicant said that he yelled at his former partner and slapped her on the face. He was aware of the AVO at the time of the breach.

17. The Applicant gave evidence that many of his offences were committed whilst under the influence of drugs. He attended a number of rehabilitation programs during the period from 2007 to 2017 which were available to drug offenders including the ‘Bridge’ program, the MERIT program and the Drug Court Program. Although at least in the case of the Drug Court program, the Applicant stopped using drugs for a period, but then returned to using ice.

18. Apart from his numerous convictions the Applicant also acknowledged that he had received a warning from the Department in relation to the potential cancellation of his visa if he were to continue offending. The Applicant gave evidence that he did not take a lot of notice of the warning at the time.

19. Under cross-examination he admitted that up to 29 September 2016 he was still using ice and committing offences. Since that date he has been in gaol or in immigration detention.

20. The Applicant accepted that he had been given many opportunities for rehabilitation. He expressed remorse for his offences and said that since being in immigration detention he has had the opportunity to consider his life, learn from his mistakes and to appreciate his family. He had also taken the opportunity to reconnect with his religious beliefs and was actively involved in church activities.

21. The Applicant acknowledged that he has had little involvement in the lives of his older children, but said that he had tried to reconnect with them in recent times. The older daughter had resisted any opportunity to reconnect with the Applicant. The younger son had made some initial contact but according to the Applicant, was prevented by his mother from having contact with the Applicant. The Applicant said that he had never met his son and that the son’s mother had told the Applicant to ‘leave the kids alone’. The Applicant’s son has had contact with the Applicant’s mother and sister. The Applicant’s son has recently turned eighteen.

22. The Applicant has two other daughters under the age of 18 from another relationship but admitted that he had very little contact with them, other than when they were very young. One of the children was said to have passed away. He did not know the birth dates of all of the children and was not listed as the father on the birth certificates the two daughters. He claimed that this occurred because the children’s mother did not want to acknowledge that she had a partner as it would interfere with her Centrelink benefits. The Applicant never sought Family Court orders to see the children and has not seen them since they were five or six.

23. The Applicant said that he wanted to have a relationship with his children.

24. The Applicant gave evidence that he saw his nieces and nephews, the children of his sister, regularly. These children are all less than 15 years old. The Applicant said that prior to him being placed in detention he saw the children ‘every now and then’, but he now sees them very regularly. The Applicant has a close relationship with his sister.

25. The Applicant gave evidence that his parents had lived in the Philippines for much of the time that he was in Australia. He had not visited them in the Philippines. He said that his parents have moved around a lot as they were living with his sister and her husband when they had moved to Hong Kong and London for work purposes. His parents returned to Australia in 2013. He tried to hide his drug problem from his parents and said that as a result of his drug addiction he was not able to assist his parents after his father had a stroke. The Applicant’s evidence was that he stayed away from his parents because of his drug problems.

    The Applicant’s mother

26. The Applicant’s mother gave evidence that she was aware of her son’s criminal offences and that she was suffering a great deal of stress and anxiety about her son’s future. She said that he had been a loving and caring son and that it was not the child she knew who had committed all of his numerous crimes whilst under the influence of drugs.

27. She gave evidence that the Applicant had strong family ties, and that she loves him dearly and thinks about him all of the time.

28. The Applicant’s mother said that he had changed significantly for the better since being in detention and that he had been drug free for the last three years.

29. She said that she felt the Applicant would be in grave danger if he were to return to the Philippines and that he would have no family support there.

30. She gave evidence that she and her husband had had very little contact with the Applicant’s children.

    The Applicant’s sister

31. The Applicant’s sister was born in 1972 and came to Australia with the Applicant. She said that the Applicant was a good person and had been a protective and thoughtful brother who always looked after her.

32. The Applicant’s sister did not know when he started using drugs but said that she saw the Applicant battle the demons of addiction, trying to stop using drugs but being unable to do so. She saw his drug addiction as ‘like an evil spirit that doesn’t want to leave’.

33. She saw the drugs destroying the Applicant, his relationships with his children and his family.

34. The Applicant’s sister said that he used to be very healthy and that he had fallen in with the wrong friends.

35. The Applicant’s sister said that the Applicant had found his religious faith and that the church he attends gave him a welcoming and supportive community. In her view the Applicant was now happier and more positive, and she felt as though her brother ‘is back with us’.

36. The Applicant’s sister said that he texts her and her children constantly and that he is really making an effort to try and connect with his biological children. He is extremely affectionate to his nieces and nephews.

37. She said that she was a separated parent and that the Applicant played a much larger role in the lives of her children than her ex-husband. In her view, the Applicant was part of a loving and supportive family. She held grave fears for his safety if he were to be removed from Australia and the support of his family.

38. I accept the evidence of the Applicant’s mother and sister who were obviously close to the Applicant and concerned about his future. They were both honest and sincere in the evidence given to the Tribunal.

    CONSIDERATION

39. Part C of the Direction sets out the primary and other considerations that must be taken into account, where relevant, when deciding whether to revoke a mandatory cancellation. The primary considerations should generally be given greater weight than the other considerations. Those primary considerations are as follows:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia;

    (c)Expectations of the Australian community.

    Protection of the Australian Community

40. The Applicant has a long history of criminal offences which might broadly be categorised as being related to drug addiction, and extend over a long period of time as demonstrated in the following summary of his National Police Certificate:

Court date	Offence	Sentence
August 2004	Common assault Contravene apprehended domestic violence order	Fine $400 Fine $400
March 2007	Furnish false information/statement to licensee	Fine $500
June 2008	Larceny value < $2000 Receive/dispose stolen property < $5000 Possess prohibited drug x2 Fail to appear in accordance with Bail granted undertaking Licence expired less than 2 years before 1st offence Driver/rider state false name/address	Good behaviour bond Good behaviour bond: 12 months with conditions Good behaviour bond: 12 months with conditions Fine $100 Fine $100 Fine $100
October 2009	Larceny value < $2000 Receive/dispose stolen property minimum Indictable Offence < $5000 Possess prohibited drug x2 Licence expired less than 2 years before 1st offence	Good behaviour bond: 6 months Good behaviour bond: 6 months Good behaviour bond:  6 months Good behaviour bond: 6 months
March 2012	Fail to appear in accordance with Bail granted undertaking Goods in personal custody suspected being stolen	Imprisonment: 1 month Good behaviour bond: 9 months supervise NSW probation
March 2012	Drive vehicle with illicit drug present in blood	Fine $300 and disqualification for 3 months
October 2012	Call up goods in personal custody suspected being stolen Goods in personal custody suspected of being stolen	Fine $500, good behaviour bond, 12 months supervised NSW probation service to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation Fine $500, good behaviour bond, 12 months supervised NSW probation service to obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation.
September 2013	Goods in personal custody suspected of being stolen x2 Possess prohibited drug x3 Goods in personal custody suspected of being stolen x3	Imprisonment (call up): 12 months aggregate sentence Imprisonment (aggregate) 12 months Imprisonment (aggregate) 12 months
February 2014	Dishonestly obtain property by deception x2	Imprisonment (aggregate): 14 months, 8 months suspended
December 2014	Call up goods in personal custody suspected of being stolen x2 Possess prohibited drug x3 Goods in personal custody suspected of being stolen x3 Dishonestly obtain property by deception x2	Imprisonment (aggregate): 8 months Imprisonment (aggregate): 8 months Imprisonment (aggregate): 8 months Imprisonment (aggregate): 8 months
August 2016	Goods in personal custody suspected being stolen x3 Goods suspected stolen in/on premises Possess prohibited drug Possess housebreaking implements	Imprisonment: 6 months – suspended sentence s 12 good behaviour bond Imprisonment: 12 months – suspended sentence s 12 good behaviour bond Imprisonment: 12 months – suspended sentence s 12 good behaviour bond Imprisonment: 12 months – suspended sentence s 12 good behaviour bond
September 2016	Drive motor vehicle not carry licence	Fine: $400
September 2016	Custody of knife in public place 1st offence	Fine: $500
March 2017	Call up goods in personal custody suspected of being stolen x4 Call up goods suspected stolen in /on premises Call up possess prohibited drug Call up possess housebreaking implements Custody of knife in public place – first offence imprisonment (aggregate) Deal with property suspected proceeds of crime Fail to appear in accordance with bail granted acknowledgement Drive vehicle under influence of drugs – 2nd offence Licence expired less than 2 years before – 1st offence Commit s114 offence having previous conviction Goods suspected stolen in/on premises Goods in personal custody suspected of being stolen	Imprisonment (aggregate) 12 months, 9 months non parole period Imprisonment (aggregate) 12 months, 9 months non parole period Imprisonment (aggregate) 12 months, 9 months non parole period Imprisonment (aggregate) 12 months, 9 months non parole period Imprisonment (aggregate) 12 months, 9 months non parole period Imprisonment (aggregate) 12 months, 9 months non parole period Imprisonment (aggregate) 12 months, 9 months non parole period Imprisonment (aggregate) 12 months, 9 months non parole period S10a conviction with no other penalty Imprisonment (aggregate) 16 months, 6 month non parole period with conditions Imprisonment (aggregate) 16 months, 6 month non parole period with conditions Imprisonment (aggregate) 16 months, 6 month non parole period with conditions
May 2017 (Appeal)	Goods in personal custody suspected being stolen x4 Goods suspected stolen in/on premises Possess prohibited drug Possess housebreaking implements Fail to appear in accordance with Bail Custody of knife in public place Deal with property suspected proceeds of crime Drive vehicle under influence of drugs (second offence) Licence expired less than 2 years before – first offence Commit s114 offence having previous conviction Call up goods in personal custody suspected being stolen Call up goods suspected stolen in/on premises	Imprisonment: 6 months (varied) Imprisonment: 6 months (varied) Imprisonment: 6 months (varied) Imprisonment: 12 months, non-parole period with condition: 6 months (varied) Imprisonment: 6 months (varied) Imprisonment: 12 months, non-parole period with condition: 6 months (varied) Imprisonment: 12 months, non-parole period with condition: 6 months (varied) Imprisonment: 6 months (varied) S10a conviction with no other penalty (confirmed) Imprisonment: 16 months (varied) Imprisonment: 12 months, non-parole period with condition: 9 months (varied) Imprisonment: 12 months, non-parole period with condition: 9 months (varied)

1. As demonstrated by the table above, the Applicant started to commit criminal offences in 2004 and continued until he was imprisoned in 2016. The evidence presented to the Tribunal showed that the great majority of these offences related to his drug use.

2. I have considered and give significant weight to the fact that the Government has a commitment to protecting the Australian community from harm as a result of criminal behaviour or other serious conduct by non-citizens.

   The nature and seriousness of his offending

3. It is clear that a number of the Applicant’s offences were of a serious nature including mail theft, carrying weapons, assault and domestic violence. In particular, I note the Direction in paragraph 13.1.1(b) states that crimes of a violent nature against women are to be viewed very seriously. The Applicant accepted that he had abused his former partner and slapped her on the face.

1. Further, the table above shows the frequency of the Applicant’s offending and a trend towards more serious offending as reflected in the increasingly severe sentences imposed. I find the cumulative effect of the Applicant’s repeated offending shows a disregard for the Australian community, the rights of other people to privacy and protection of their property, and a disregard for authority. I note that this is consistent with drug addiction.

2. It is also of concern that the Applicant admitted to re-offending after he had received a warning from the Department regarding the potential cancellation of his visa, which he understood to be serious, but to which he paid little regard at the time. The Applicant gave evidence that this was due to the influence of drugs.

3. Having regard to all of the relevant principles and the evidence before the Tribunal, the Applicant’s criminal behaviour is of serious concern.

   The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

4. It is relevant in considering this factor that the Applicant was unable to overcome his addiction despite attending a number of rehabilitation programs, including under the direction of the Drug Court, over a lengthy period of time. Although this is somewhat mitigated by the fact that he has since expressed genuine remorse and re-engaged with his family.

5. The Applicant said that he had had the opportunity whilst in detention to reconsider his life and understood the catastrophic effect his drug addiction has had on his life and the lives of those around him. He had also rediscovered his religious faith and become part of a church community. He said that he would never take drugs again.

6. The Applicant has been free of drugs while in detention. However, if his history is any guide there may be a likelihood that he may relapse into drug use which may lead to a repeat to the pattern of criminal conduct outlined above. Such conduct places the Australian community at risk of credit card fraud, property theft and the possibility of violence, although I accept the risk of violence to be low as the Applicant’s criminal activity primarily falls into the category of theft and economic crime. His only violent offence (which I treat as serious) occurred in 2004 and has not been repeated.

7. Having considered all of the above, I give substantial weight to this primary consideration which I find weighs against revocation.

   Best Interests of minor children in Australia

8. The evidence before the Tribunal makes it quite clear that the Applicant has very little or no relationship with his biological children. He claims to have one remaining minor daughter in Australia, as he believes that one of his daughters passed away in 2017.

9. There is no evidence that the Applicant has ever engaged in any form of abuse of his daughter, rather he has simply been absent from her life, except perhaps for a period when she was very young.

10. The Applicant does play a significant role in the lives of his nephews and nieces and their mother gave evidence that he is in effect a father figure to them and that they communicate with him regularly. The evidence of the Applicant’s sister was that it would have a negative impact on the children if the Applicant were to be separated from them.

11. There was evidence of the affection the Applicant’s nieces and nephews had for him and their very real concern if he were to be removed from Australia.

12. On the limited evidence available, it appears that the Applicant’s biological daughter lives with and has been raised by her mother. The Applicant appears never to have sought to pursue any avenues under the family law system to ensure that he had regularly time with his daughters. He did give evidence as to some irregular attempts to contact them.

13. I find that in the case of the Applicant’s daughter, it is on balance in her best interests for the Applicant to remain in Australia so that there is at least the opportunity to reconnect with him, especially as he now wishes to be a positive part of her life and has actively sought to restore contact with her.

14. The Applicant’s criminal history and previous drug addiction is not a good role model for his own children or his nieces and nephews. However his genuine attempts at overcoming his addiction and re-joining his wider family are positive.

15. In relation to his nieces and nephews it is clearly in their best interests, given the evidence before the Tribunal as to the Applicant’s relationship with them and the breakdown in the relationship with their father, for the Applicant to remain in Australia.

16. Although I should “generally” give less weight to a non-parental relationship or to a relationship where there have been long periods of absence (as per paragraph 13.2(4)(a) of the Direction), I do give some weight to this primary consideration which weighs in favour of revocation.

    Expectations of the Australian Community

17. In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by a majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. Rather the expectations of the community that decision-makers are required to consider are those set out in the Direction. While that case involved a consideration of the previous Direction no. 65, specifically paragraph 11.3 which relates to whether to refuse the granting of a visa, paragraph 13.3 of Direction no. 79 is nearly identical in wording and I therefore consider FYBR to be applicable in the current case.

18. The Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. The evidence shows overwhelmingly that since returning to Australia in 2000 the Applicant, except for short periods of time, has engaged in criminal activity of increasing seriousness.

19. Accordingly I find that the expectations of the Australian community would be that the Applicant should not hold a visa. I give substantial weight to this consideration which weighs against revocation.

    OTHER CONSIDERATIONS

20. Paragraph 14(1) of the Direction also specifies that other considerations must be taken into account where relevant. The considerations relevant to this matter are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties; and

    (c)the extent of impediments if the Applicant were removed from Australia.

    International non-refoulement obligations

21. The Applicant applied for a protection visa which was not granted on character grounds. However it was accepted that Australia has protection obligations in relation to the Applicant under the relevant international instruments to which Australia is a party.

22. Although the Respondent’s representative submitted that removal of the Applicant from Australia to the Philippines would be possible ‘as a matter of law’ (with reference to DMH16 v Minister for Immigration and Border Protection [2017] FCA 448), it was clearly stated that it is not the Government’s policy to do so and thus it is highly unlikely that the Applicant would be returned to the Philippines where he is quite clearly at risk of harm.

23. Paragraph 14.1(2) of the Direction states that Australia will not remove a non-citizen to a country in respect of which the non-refoulement obligation exists.

24. Despite the Respondent’s submission that the Applicant is unlikely to be removed to the Philippines there are a number of areas of concern.

25. Firstly, the Act dictates that the Applicant having been refused a protection visa cannot apply for any other substantive visa that would allow him to remain permanently in Australia due to the combined operation of sections 48A and 501E, unless the Minister personally exercises his power under section 48B. This is at the Minister’s discretion.

26. Further, section 198 of the Act dictates that the Applicant as an unlawful non-citizen must be removed as soon as reasonably practicable. Section 197C then comes into play and states:

    (1)  For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    (2)  An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

27. Section 197C was considered in DMH16 where North ACJ stated at [26]:

    In fact, by the operation of s 197C, if the protection visa was refused the applicant would either be removed to Syria immediately, or, if the Minister decided to consider alternative management options, be detained for a definite period, namely, until the Minister considered whether to exercise the power under s 195A. Then if the Minister refused to exercise the power, the applicant would be removed to Syria.

28. The impact of section 197C on the duty to remove under section 198 was also considered by the Full Federal Court in Le v Minister for Immigration and Border Protection [2016] FCAFC 120, where their Honours observed at [60]:

    [T]he operation of s 197C of the Migration Act … makes plain that Australia’s non-refoulement obligations are not a relevant consideration when an officer comes to discharge the statutory duty imposed by s 198 to remove an unlawful non-citizen as soon as reasonably practicable. Necessarily, therefore, to the extent that that issue is material it must be addressed at an earlier stage in the decision-making process.

29. The recent decision of Gleeson J in CWGF v Minister for Home Affairs [2019] FCA 1802 is also relevant. In that case her Honour states at [10] (with citations omitted):

    As a result of s 197C and s 198(2A), the legal consequence of refusing to revoke the cancellation of the applicant’s visa is that the applicant is required to be removed from Australia as soon as reasonably practicable. In the meantime, the applicant will be subject to “indefinite detention” in the sense that detention would be limited only by the time taken for the Minister to consider “alternative management options” or until removal is “reasonably practicable”.

30. As there is no evidence that the Applicant is a citizen of any country other than the Philippines, and in the absence of evidence that any other country would be willing to take him, the Applicant’s removal from Australia would require him to return to the Philippines.

31. In light of the operation of the Act as detailed above along with relevant authorities, I consider it likely that the Applicant faces a prolonged period of detention whilst the Minister considers any “alternative management options”. If the Minister decides to either not consider those options, or decides not to exercise those powers, then the Applicant faces the prospect of removal to the Philippines where he would be in grave danger of being harmed or killed due to his previous drug addiction. The Respondent agreed that he would be at such risk if he were to return.

32. If the Applicant was required to remain in “indefinite” detention (in the sense described above by Gleeson J in CWGF), this would clearly be of concern. The Applicant has served periods of imprisonment and if his evidence is to be accepted is now committed to turning his life around. The Respondent’s representative submitted that the “alternative management options” available to the Minister would mean that the Applicant would not be kept permanently in immigration detention, but rather would be detained while those options were being considered, when and if the Minister chose to do so. In other words, none of the Minister’s powers in this regard are compellable and lie entirely within the Minister’s discretion.

33. The fact that if the Applicant were removed to the Philippines this would result in breach of Australia’s non-refoulement obligations is also a matter to which I give significant weight.

34. I give this factor considerable weight in favour of revocation.

    Strength, nature and duration of ties

35. The Applicant first arrived in Australia as a young child but left shortly after and returned to Australia at the age of 24. He began offending shortly after he returned to Australia as an adult in 2004.

36. The Applicant has not had a close and ongoing relationship with his biological children, nor with his extended family. Although, his relationship with his parents and sister has become much closer since about 2016.

37. Since being in immigration detention the Applicant has become part of a local church community and says that this is now an important part of his life. His faith and his re-established ties with his family have given him strength and enabled him to avoid depression during his period in detention.

38. From the evidence it is clear that the Applicant’s drug addiction prevented him from forming close ties with the wider Australian community for much of his period in Australia. It also prevented him from making any significant positive contributions to the Australian community.

39. At the hearing it was clear from the evidence of the Applicant’s mother and sister that he was currently an important part of the family, especially since his father had recently passed away. Both parties gave evidence as to their emotional ties to the Applicant and his importance to the stability and wellbeing of the family.

40. Having considered all of these factors, I find that this consideration weighs in favour of revocation.

    Extent of impediments if removed

41. As stated above the Applicant faces danger of harm if he is returned to the Philippines. Further, the Applicant has no support network in the Philippines and says that while he has some family there, he is not close to them and many of them he has never met or spoken to. He has not been to the Philippines for some 20 years and would be completely unfamiliar with the country. It is likely he would have difficulty finding employment, particularly if employers were aware of his criminal record in Australia.

42. The Applicant would be seriously adversely affected by not being close to his mother and his sister who clearly provide significant support to him. He also clearly is sustained by his regular and ongoing contact with his nieces and nephews. He would also lose the benefit of the church group of which he is a member. I note that as a citizen of the Philippines the Applicant would have access to medical facilities and social services in the Philippines, however I also note that these facilities are not of a similar standard of those available in Australia.

43. It is difficult to see that the Applicant would be able to easily establish himself in the Philippines.

44. I give weight to this consideration which weighs in favour of revocation.

    DECISION

45. Although the two primary considerations of protection of the Australian community and expectations of the Australian community weigh heavily in favour of non-revocation, I find they are outweighed primarily by consideration of the impacts of Australia’s international non-refoulement obligations on the Applicant.

46. Accordingly, I am of the opinion that there is another reason why the mandatory cancellation should be revoked.

47. The reviewable decision is set aside and substituted with a decision to revoke the mandatory cancellation of the Applicant’s Class BB (Subclass 155) Five Year Resident Return visa.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

..............................[sgd]..........................................

Associate

Dated: 9 January 2020

Date of hearing:	16 October 2019
Applicant:	In person
Advocate for the Respondent:	Ms M Donald
Solicitors for the Respondent:	Sparke Helmore Lawyers