Toroa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 1717

Toroa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1717 (20 June 2023)

Division:GENERAL DIVISION

File Number:          2023/1394

Re:Joel Poara Toroa  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

REASONS FOR DECISION

Tribunal:L M Gallagher, Member

Date:20 June 2023

Place:Perth

On 22 May 2023, I made the following decision:

The Reviewable Decision, being the decision of a delegate of the Respondent dated 27 February 2023, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

These are my written reasons.

..............[Sgd]..........................................................

L M Gallagher, Member

CATCHWORDS

MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No. 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct  – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – Applicant is a 43 year old man who arrived in Australia as a 10 year old – extent of impediments if returned to New Zealand – Non-Revocation Decision is set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 43

Migration Act 1958 (Cth) – ss 189, 198, 197C(1), 197C(3), 500(1)(ba), 500(6B), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii), 501G

Misuse of Drugs Act 1981 (WA) – s 33(2)(a)

Sentencing Act 1995 (WA) – ss 89(4), 93(1)(b)

CASES

Bread Manufacturers of NSW v Evans (1981) 180 CLR 404

BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 

BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6

CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514

CZCV and Minister for Home Affairs [2019] AATA 91

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hambledon v Minister for Immigration & Border Protection[2018] FCA 7

Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445

Jagroop and Minister for Immigration and Border Protection [2015] AATA 751

Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461

JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762

Minister for Home Affairs v HSKJ (2018) 266 FCR 591

Nguyen v Minister for Home Affairs (2020) 170 ALD 38

Nigro v Secretary to the Department of Justice (2013) 41 VR 359

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143

Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953

Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424

Re Nguyen and Minister for Immigration [2021] AATA 227

Re Peterson and Minister for Immigration [2020] AATA 1256

Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424

Truslove v Western Australia [2015] WASCA 1

WAD 230/2014 v Minister for Immigration & Border Protection (No 2)[2015] FCA 705

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208

YNQY v Minister for Immigration & Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Administrative Appeals Tribunal, Persons Giving Expert and Opinion Evidence Guideline (Web Page) < Government Department of Health and Aged Care, National Drug Strategy 2017-2026 (Web Page) < 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)

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 s501CA (20 December 2018)

Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)

Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(4), 5.2(5), 5.2(6), 6, 7, 8, 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(4)(a)(i), 8.4, 8.4(1), 8.4(2), 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 9, 9.1, 9.1.2, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4

REASONS FOR DECISION

L M, Gallagher

20 June 2023

1. The Applicant seeks review of a decision made by a delegate of the Respondent

   
   

   (the Delegate) on 27 February 2023 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).[1]

   [1]R1, G2.

2. The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 6 March 2023,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

   [2]R1, G1.

   The hearing was held on 2 May 2023 at the Tribunal in Perth. The Applicant was represented by Ms Samuta McComber of Samuta McComber Lawyers. The Respondent was represented by Mr Jon Papalia, of the Australian Government Solicitor. The Applicant and Ms Samuta appeared in person.  Mr Papalia appeared by Microsoft Teams video.

   BACKGROUND FACTS

3. The Applicant is a 43-year-old citizen of New Zealand, who first arrived in Australia on 16 March 1990, at age 10.[3] The Applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa on 15 October 2010.[4]

   [3]R1, G4, document L, p 155; A2, document 1 [4].

   [4]R1, G7, p 195.

4. The Applicant has immediate family in Australia, including his father[5], his adult son, siblings, nieces and nephews, his ex-partner, his ex-partner’s sister and mother, and his nieces and nephews in-law.[6]  The Applicant also has a sister who lives in New Zealand.[7] 

   [5]The Applicant’s mother is deceased. See, for example, A2, document 1 [4] and sentencing remarks at R1, G4, document B, p 31.

   [6]A2, document 1 [69].

   [7]A2, document 1 [71].

   Applicant’s offending

5. The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, dated 12 December 2019 and a History For Court report by the Western Australian Police Force, compiled on 23 March 2023.[8] The details are recorded as follows:

   [8]R1, G4, pp 25-26; R2 pp 3-6.

Court	Court Date	Offence	Court Result
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell or supply a prohibited Drug to another	Imprisonment: four months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: three months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: three months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell or supply a prohibited Drug to another	Imprisonment: four months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell or supply a prohibited Drug to another	Imprisonment: four months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: three months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: three months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell or supply a prohibited Drug to another	Imprisonment: four months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: six months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: six months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: six months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Offer to sell/supply a prohibited drug to another (Methylamphetamine)	Imprisonment: six months concurrent from 14/03/2019
Kalgoorlie District Court of Western Australia	15 March 2019	Conspiracy to possess a prohibited drug with intent to sell/supply	Drug Trafficker Declaration Imprisonment: five years and four months concurrent from 14/03/2019
Kalgoorlie Magistrates Court	14 May 2018	Criminal Damage or Destruction of Property	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possession of stolen or unlawfully obtained property	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possess a Prohibited Plant	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possession of stolen or unlawfully obtained property	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possession of stolen or unlawfully obtained property	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possession of stolen or unlawfully obtained property	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	Fine: $1,200 (global)
Kalgoorlie Magistrates Court	14 May 2018	Possessed a prohibited weapon	Fine: $1,200 (global)
Kalgoorlie Court of Petty Sessions	26 July 2002	Assault Common	Fine: $250

The Applicant has no other known criminal history in Australia or New Zealand.

1. On 15 March 2019, the Applicant was sentenced to a term of imprisonment of five years and four months by the District Court of Western Australia at Kalgoorlie for the following offences:[9]

   [9]R1, G4.

   (a)One count of “Conspiracy to possess a prohibited drug with intent to sell/supply,”[10]  that drug being methylamphetamine;

   [10]The head sentence was imposed for the offence of “conspiracy to sell or supply a trafficable quantity of methamphetamine.” The parties interchangeably refer to this offence as the index offending.

   (b)Eight counts of “Offer to sell/supply a prohibited drug to another (Methylamphetamine)”; and

   (c)Four counts of “Offer to sell or supply a prohibited Drug to another,” that drug being cannabis.

   The Applicant’s criminal record also consists of:

   (a)A $250 fine for his conviction of “Assault Common” in the Court of Petty Sessions at Kalgoorlie on 26 July 2002; and

   (b)A global fine of $1,200 for his convictions in the Magistrates Court of Western Australia in Kalgoorlie on 14 May 2018, being:

   (i)Four counts of “Possession of stolen or unlawfully obtained property”;

   (ii)Two counts of “Possessed drug paraphernalia in or on which there was a prohibited drug or plant”;

   (iii)One count of “Criminal Damage or Destruction of Property”;

   (iv)One count of “Possess a Prohibited Plant”; and

   (v)One count of “Possessed a prohibited weapon.”

2. The Applicant has been detained at Yongah Hill Immigration Detention Centre in Western Australia since 18 January 2023.[11]

   [11]The Applicant’s parole order expires on 13 July 2024. See A2, document 19, p 36.

   Present proceedings

3. On 21 May 2020, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act (the Cancellation Decision).[12] The Visa was cancelled on the basis that the Applicant did not pass the character test in subsection 501(7)(c) of the Migration Act, by virtue of his having been sentenced to a term of imprisonment of 12 months or more.[13]

   [12]R1, G4, document K, pp 148-154.

   [13]R1, G4, document K, p 148. See subsections 501(6)(a) and 501(7)(c) of the Migration Act.

4. The notice of visa cancellation invited the Applicant to make representations about why the Cancellation Decision should be revoked.[14]

   [14]R1, G4, document K, p 149.

5. On 28 May 2020, the Applicant requested the Cancellation Decision be revoked under section 501CA of the Migration Act and made representations in that regard.[15]

   [15]R1, G4, document D1, pp 43-44.

6. On 10 December 2020, 25 March 2021 and 18 June 2021,[16] the Applicant made further representations and provided submissions and documents in support of his application for revocation.

   [16]R1, G4, document H, pp 55-71; document I, p 114 and document N, p 159.

7. As noted above,[17] on 27 February 2023, the Delegate made the Reviewable Decision. The Applicant was notified of the Reviewable Decision on the same date.[18]

   [17]See [1] above

   [18]R1, G6, pp 186-190.

8. On 6 March 2023, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[19] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.

   [19]R1, G1, pp 1-6.

   ISSUES

9. The Applicant does not dispute that he does not pass the character test.[20] The Tribunal, in any event, so finds: s 501(6)(a) and 501(7)(c) of the Migration Act preclude a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more.  On the basis that on 15 March 2019, the Applicant was sentenced to a term of imprisonment of five years and four months[21] for the offence of “Conspiracy to possess a prohibited drug with intent to sell/supply,”[22] he has a substantial criminal record as defined and therefore does not pass the character test.

   [20]A1 [4], [5].

   [21]See [6] above.

   [22]Pursuant to s 33(2)(a) of the Misuse of Drugs Act 1981 (WA).

10. Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[23] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason”[24] why the decision to cancel the visa should be revoked,[25] having regard to the primary and other considerations in Direction No. 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 99).[26]

    [23]Direction No. 99 para 5.1(3).

    [24]See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].

    [25]

    [26]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), (23 January 2023). See [26] below.

11. The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).

12. The 84-day period for the Tribunal to decide this matter ended on 22 May 2023 and the Tribunal delivered its decision.

    LEGISLATIVE FRAMEWORK

    Migration Act

    Mandatory cancellation of a visa under s 501(3A) of the Migration Act

13. Section 501(3A) of the Migration Act provides that:

    (3A)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)    paragraph (6)(e) (sexually based offences involving a child); 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.

    The character test

14. Section 501(6) of the Migration Act provides that:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)the person has a substantial criminal record (as defined by
    subsection (7));

    …

    (Original emphasis.)

15. A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of
    12 months or more; or …

    (Original emphasis.)

    Power to revoke cancellation decision

16. Section 501CA of the Migration Act further 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.

    (2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:

    (a)would be the reason, or a part of the reason, for making the original decision; and

    (b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

    (3)As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

    (4)The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

    (Original emphasis.)

    Direction No. 99

1. Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.

2. On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No. 99 under s 499 of the Migration Act. Direction No. 99 commenced operation on 3 March 2023, replacing the previous Direction No. 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 90), which was revoked on the same date.[27]

3. The Tribunal notes that the Reviewable Decision was made by the Delegate applying Direction No. 90, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 99, all decisions made on or after 3 March 2023 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[28]

4. The purpose of Direction No. 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[29] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 99.[30]

   Paragraph 5.1 of Direction No. 99 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:

   (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.

   [27]Direction No. 99 para 3.

   [28]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.

   [29]Direction No. 99 para 5.1(4).

   [30]Direction No. 99 para 6.

5. Paragraph 5.2 of Direction No. 99 sets out “[p]rinciples” which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA” and are expressed 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   (6)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 8.55(2)[31] (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.

   [31]As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

6. Informed by the principles set out in para 5.2 of Direction No. 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding “whether to revoke the mandatory cancellation of a non-citizen’s visa”.[32]

   [32]Direction No. 99 para 6; see also the definition of “decision-maker” in para 4(1) of Direction No. 99, which includes the Tribunal.

7. The primary considerations in Direction No. 99, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[33]

   (1)  protection of the Australian community from criminal or other serious conduct;

   (2)  whether the conduct engaged in constituted family violence;

   (3)  the strength, nature and duration of ties to Australia;

   (4)  the best interests of minor children in Australia;

   (5)  expectations of the Australian community.

   [33]Direction No. 99 para 8.

8. Paragraph 9 of Direction No. 99 sets out other considerations that the decision-maker must take into account. It relevantly provides that:

   (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)legal consequences of the decision;

   b)extent of impediments if removed;

   c)impact on victims;

   d)impact of Australian business interests

9. Further guidance as to how a decision-maker is to apply the considerations in
   Direction No. 99 can be found in para 7, “[t]aking the relevant considerations into account”, 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.

   EVIDENCE

10. The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant also called the following witnesses to give evidence:

    (a)Mr John “Buck” Heron (the Applicant’s friend and past employer);[34]

    (b)Mr Brian Armstrong (the Applicant’s friend and prospective employer);[35] and

    (c)Dr Jacqui Yoxall (Psychologist).[36]

    [34]Mr Heron gave evidence by telephone and his statements appear at R1, G4, document H15, pp 94-95 and A2, document 6, pp 21-22.

    [35]Mr Armstrong gave evidence by telephone and his statement appears at A2, document 32, p 184.

    [36]Dr Yoxall gave evidence via Microsoft Teams and her reports appear at R1, G4, document I1, pp 115-146 and A2, document 31, pp 165 – 183. Dr Yoxall’s related letters of instruction were provided at hearing.

11. The Tribunal admitted the following documents into evidence at the hearing:

    (a)Applicant’s Statement of Facts, Issues and Contentions (SFIC), dated 3 April 2023 and filed on 5 April 2023 (Exhibit A1);

    (b)Applicant’s Tender Bundle, being a 184-page set of documents numbered 1 to 32, filed on 21 April 2023, 26 April 2023 and 27 April 2023 (Exhibit A2);

    (c)Applicant’s amended Statement of Facts, Issue and Contentions, dated 3 April 2023 and filed on 26 April 2023 (Exhibit A3);[37]

    (d)Applicant’s Reply, dated 24 April 2023 and filed on 26 April 2023 (Exhibit A4);

    (e)Respondent’s G-Documents, being a 198-page set of documents provided under s 501G of the Migration Act numbered G1 to G8, filed on 13 March 2023 (Exhibit R1);

    (f)Respondent’s Tender Bundle, being a 135-page set of documents numbered 1 to 2, filed on 20 April 2023 (Exhibit R2); and

    (g)Respondent’s SFIC, dated and filed on 20 April 2023 (Exhibit R3).

    [37]This includes minor amendments in tracked changes.

12. The Tribunal has taken into account the letters of support and statutory declarations of the Applicant’s additional family members and friends who did not give oral evidence at the hearing.[38]  

    [38]See R1, G4, documents H15-H32 and A2, documents 3, 4, 7, 8-12, 15, 17, 22-25.

    The Applicant

13. The Applicant adopted his statement dated 21 April 2023[39] and the matters addressed in his personal circumstances form dated 10 December 2020.[40]

    [39]A2, document 1.

    [40]R1, G4, document H6, pp 75-86.

14. In his statements and other materials, and orally at hearing the Applicant gave the following evidence: 

    (a)He had been using cannabis and methamphetamine recreationally since he was 19 years old.[41]  At the time, he kept his drug use to himself:[42]

    [41]Transcript, p 18 [30]; A2, document 1 [13]; See sentencing remarks at R1, G4, document B, p 32.

    [42]Transcript, p 19 [25]-[35].

    MEMBER:       When you’re on it, you think that you’ve got it under control, but slowly things are just getting out of control.  And before you know it, it’s too late.

    APPLICANT:     So you say it was slow. So it was never in your thought [sic] at any time to think things are starting to unravel a little, to reach out to anyone, you’ve got this big supportive family?

    MEMBER:        Many a times. But the drugs speak for you sometimes.

    (b)In 2016, his methamphetamine use escalated to twice daily use[43], becoming “more than just a bad habit,”[44] contributing to the breakdown of his relationship with his partner (his son’s mother) in 2017 and negatively impacting his performance at work to the point that he quit his job and went into financial hardship.[45]

    [43]See sentencing remarks at R1, G4, document B, p 30.

    [44]A2, document 1 [14].

    [45]A2, document 1 [16]-[19]; See sentencing remarks at R1, G4, document B, p 32.

    (c)His drug dealing in 2017 involved him offering to supply drugs (cannabis and methamphetamine) on 12 separate occasions in 11-days over a three-month period and was based on his communications on Facebook and Signal.[46] His charges followed a police raid in November 2017.[47]

    [46]Transcript, p 14 at [30]-[35]. See sentencing remarks at R1, G4, document B, p 28.

    [47]A2, document 1 [39]; See sentencing remarks at R1, G4, document B, p 29.

    (d)His offending, including his weapons and property offending, took place when he was addicted to drugs.[48]

    [48]A2, document 1 [31].

    (e)One of the people he offered to supply cannabis to was a teenage male who called him “Uncle Buddha.”[49] This person was not his biological nephew, but the son of a family friend.[50] This person and, rather, everyone he knows, including his nephews and nieces and their friends, call him “Uncle Buddha” as a sign of mutual respect.[51] 

    [49]Transcript, p 14 [40]; See sentencing remarks R1, G4, document B, p 33.

    [50]A2, document 1 [38]. See R2, document 2(c), p 76 and A4 [5]

    [51]Transcript, p 14 [40]-[45] and p 15 [5]-[35].

    (f)It was a “bad mistake” to sell drugs to children, and to offer to sell drugs to a child that was calling him “Uncle.”[52]

    [52]Transcript, p 15 [40]-[45] and p 16 [5].

    (g)He did not supply or offer to supply drugs for financial gain. He did it to finance his own drug use.[53]

    [53]Transcript, p 16 [15]-[20]; See A2, document 1 [23], [36] and [37]. The Sentencing Judge accepts that in part, the Applicant engaged in his drug offending to support his own habit: R1, G4, document B, p 35.

    (h)Being in custody had a big impact on him. He has done a lot of self-reflection and has changed a lot.[54]

    [54]Transcript, p 16 [10]-[15].

    (i)He stopped using methamphetamine in December 2017 when he was charged, following an argument with his father.[55]  He stopped using cannabis early in 2019 prior to going into custody and he has not used drugs since.[56] He quit methamphetamine “cold turkey” with the support of his family.[57] He wanted to “break” the “habit” because:[58]

    [55]A2, document 1 [40]-[42] and [109].

    [56]Transcript, p 18 [5]-[20]; A2, document 1 [42], [47] and [48].

    [57]A2, document 1 [44], [45] and [67].

    [58]Transcript, p 18 [35]-[40].

    …[T] this last five years has been an eye opener for me, it taught me a lot of things. It’s not worth it…

    It taught me that it’s stupid.  It got me in trouble. I’m not about to do something that got me in trouble again.

    (j)In April 2018, he moved to Kyogle in NSW to work with Mr Heron, his old rugby coach and mentor.[59]

    [59]A2, document 1 [43]; A1 [46(d)].

    (k)Drugs are available in prison and in immigration detention.[60] He has had the opportunity to use drugs in prison and in immigration detention but has not done so.[61]

    (l)In prison, he completed Pathways,[62] a number of other courses,[63] and held privileged and trusted employment positions, such as head librarian.[64]

    (m)In detention, he goes to the gym multiple times a day and continues his rehabilitation through SMART Recovery.[65]

    (n)He has many close family members in Australia,[66] including his adult son, with whom he keeps in regular contact.[67]  He maintains a good relationship with his ex-partner and they continue to own a home together.[68]  In detention, he messages family members daily.[69]

    (o)His minor niece[70] has always been special to him, because she’s the baby of the family and he has always wanted a girl himself.[71] He used to see her often with family and coach and train her sporting teams.[72] It’s hard to explain and an “emotional thing.”[73]  He talks to her as often as he can.[74]  His minor niece’s mother plays the parental role.[75]

    (p)He has a younger sister who lives in New Zealand, who is married with four children.[76]  If he were returned to New Zealand, he would contact her and he would like to think she would offer him a place to stay.[77]

    (q)His father is 73 years of age, needs domestic assistance and the Applicant would like to assist his father in his old age.[78]

    (r)Being away from his family and in prison is hard (immigration detention is “no better”)[79], as his family is “so close” but he has learned a lot in prison.[80]  Self-development and adopting healthy habits were “big thing[s].”[81]  His whole mindset has changed a lot.[82]

    (s)His family means everything to him and thinking about his offending makes him feel horrible as he hurt a lot of people.[83] He is terrified of losing his family.[84] The experience of visa cancellation is scary. He does not want to return to New Zealand[85] because everything he has and loves is in Australia.[86]

    (t)If he can remain in Australia, he will live with his dad and sister, will likely work at Downer in Kalgoorlie, or with Mr Heron in NSW.[87] He hopes to engage with Hope Community Services,[88] to continue to volunteer with the Salvation Army and abstain from drugs with the help of his family.

    [60]Transcript, p 23 [10]-[25].

    [61]Transcript, p 23 [10]-[25], [45]; A2, document 1 [49].

    [62]See Applicant’s Pathways Program Completion Certificate dated 5 December 2019: R1, G4, document J, p 147 and R2, document 2(f), p 96 and R2, document 2(g), p 118.

    [63]A2, document 1 [53].

    [64]A2, document 1 [50]-[52].

    [65]A2, document 1 [55] and [56].

    [66]Listed at A2, document 1 [69], [70]; [80]-[87]; see also R1, G4, document H5, p 83.

    [67]A2, document 1 [72], [73].

    [68]A2, document 1 [74], [75].

    [69]A2, document 1 [83]

    [70]The Applicant has one niece of minor age, whose mother is the sister of his ex-partner (Transcript, p 17 [5]).

    [71]Transcript, p 16 [35]-[40]. See also A2, document 1 [89]-[95].

    [72]R1, G4, document H5, p 83. See the Applicant’s minor niece’s statement at A2, document 24, p 93.

    [73]Transcript, p 23 [5]-[10].

    [74]Transcript, p 16 [45].

    [75]Transcript, p 17 10].

    [76]Transcript, p 17 [15]-[20]; A2, document 1 [71], [102].

    [77]Transcript, p 17 [20]-[30].

    [78]A2, document 1 [77]-[79].

    [79]Transcript, p 21 [40].

    [80]Transcript, p 21 [25].

    [81]Transcript, p 21 [25].

    [82]Transcript, p 21 [25].

    [83]Transcript, p 21 [35]-[40].

    [84]A2, document 1 [88].

    [85]Transcript, p 21 [45].

    [86]Transcript, p 22 [5], [35].  See also A2, document 1 [96]-[101], [103]-[105] and R1, G4, document H5, p27.

    [87]A2, document 1 [59], [61], [62], [63], [65], [66].

    [88]See also A4 [11]. The authors of the Pathways Program Completion Report recommended that given the Applicant’s quick escalation into methamphetamine use and dealing, he may benefit from supervision within the community to solidify the gains he made over the program: R2, document 2h, p 123. Dr Yoxall was also of the view that the Applicant would benefit from engagement in treatment and support groups in the community, to ensure a stable transition back to the community without relapse: R1, G4, document I1, p 136 [11].

    Mr John Heron

15. Mr Heron gave evidence that he met the Applicant at their rugby club, he has known him for over 12 years and has always found him to be honest, hardworking and respectful to others.[89]  Mr Heron said that he was unaware of the Applicant’s drug use and did not know about the Applicant’s drug charges in 2017.[90] 

    [89]Transcript, p 26 [40]-[45]; A2, document 6, p 21.

    [90]Transcript, p 27 [5]-[20].

16. Mr Heron gave evidence that from March 2018 to September 2018, the Applicant worked with him in NSW in his construction business, where the Applicant worked “40 to 50 hours a week, turned up every time, didn’t have any issues with attendance or attitude or any behaviour.”[91]

    [91]Transcript, p 27 [40]-[45]; A2, document 6, p 21.

17. Mr Heron said that if the Applicant was released, he would be willing to employ him notwithstanding having been informed of the Applicant’s drug offending.[92]

    [92]Transcript, p 28 [5]-[15].

    Mr Armstrong

1. Mr Armstrong gave evidence that he has known the Applicant for over 20 years, and he was aware the Applicant had been dealing drugs in late 2017.[93]

   [93]Transcript, p 31 [35].

2. Mr Armstrong said that he has no concerns at this time in offering the Applicant employment, notwithstanding the Applicant’s criminal offending, because he believes the Applicant is of good character and that the Applicant regrets what has happened.[94]  

   [94]Transcript, p 32 [5]; A2, document 32, p 184.

   Dr Yoxall

3. By way of cross-examination, Dr Yoxall was asked to expand on the following opinion:[95]

   [95]Report dated 25 January 2021, R1, G4, document I1, p 136 [7].

   When offending is driven by a dependence (as in the case of [the Applicant]), rehabilitation must focus on the substance dependence and the risk of future offending is heavily dependent upon the individuals’ ability to abstain from use of the substance…

   Dr Yoxall went on to expand on her opinion as requested:[96]

   So if we look examine [sic] any form of offending, there’s usually a range of factors that we can identify that contributed to that offending. So thinking about that offender’s pathway to the offending, and there are certain things that we can’t change, and then there are things that we can; referred to as “dynamic risk factors”. 

   When a circumstance of offending, or a range of offences, is heavily driven by substance dependence and, of course, there’s no one factor in offending, there’s a range of factors; but we put different levels of weight on particular variables.

   And when that’s heavily around the substance, either in terms of sourcing the substance or it’s a result of the impaired judgement of that substance or the negative social influences that came about from the dependence, when that’s a significant part of why that person engaged in the offending - e.g., if they didn’t have that substance dependence onboard - it’s very unlikely they would have found themselves engaging in that level of offending. 

   Then what we look at, from a rehab point of view, is what are the dynamic risk factors that are changeable and how do we change them, so as to mitigate the issues around the dependence, and to reduce the likelihood of future offending. 

   So that’s why, in my opinion, the key driver for the most, if you like, other than violent offending, the most serious offending in recent years and what sent him to prison was offending that, in my opinion and based on my assessment, appeared to be heavily driven by his methamphetamine dependence.  So therefore, from a rehab point of view, it stands that if we can start to mitigate, adjust, tweak, change, reduce, that factor, or remove it completely, then we are in turn removing the risk of the reoffending; and that’s within the context of other pieces as well. So you end with this relationship between offending and substance relapse.

   (Emphasis added.)

   [96]Transcript, p 34 [10]-[35].

4. As to the role that the Applicant’s past cannabis use has to play in his risk of reoffending, Dr Yoxall stated:[97]

   [97]Transcript, p 34 [45], p 35 [5]-[45], p 36 [5].

   DR YOXALL:              My understanding is that he used cannabis over a long period of time socially, and to different levels, and had fluctuated in that.  Despite what I understand to be many years of cannabis in that form, he had otherwise lived a functional life. 

   He had a relationship, he’d bought a house, he paid components of that mortgage, or at least kept up with his repayments, he’d held steady jobs, you know, and fairly reasonable positions of responsibility over time. 

   He had intact relationships, he had intact social connections in groups, he had roles in his local community outside of simply work and home, and for all intents and purposes, he didn’t have any psychiatric or mental health issues arising from cannabis use that we’re aware of, he didn’t have any physical issues arising, despite the use and the possession of cannabis, you know, obviously being an offence, he hadn’t been picked up by police in possession of it, he hadn’t been caught for trafficking in it. 

   So if we think about the person’s ability to function, and for that use to be kept under relative control so that he didn’t experience the deterioration of all of those aspects of a functional stable life, and didn’t find himself at-odds with the law, one would say that that wasn’t the reason that he eventually found himself, in 2017 as I remember, involved in quite a lot of serious offending. 

   So I think the broad issue with dependence is that it’s important to manage dependence across the realm, but I don’t think that smoking cannabis led to him developing a methamphetamine dependence because, if that were the case, then that could have happened many, many, many, years before. 

   It’s quite well-established that different - we know that different substances produce different experiences, and have different effects, and certainly we also know that methamphetamine has very substantial rates of fast dependence from the initial use of the substance, and it’s a very difficult drug to cease us [sic] of once dependence has set in. 

   So I think it’s generally important for Mr Toroa to abstain from all substances, because he is a person who has had substantial methamphetamine dependence, and he’s certainly had a lot of years of cannabis dependence. 

   That may or may not be described as a substance use disorder, but there’s a whole range of (indistinct) there, but that’s not why he ended up where he is. 

   He ended up where he is, in my opinion, because he developed quite a severe, quiet [sic] a vicious, methamphetamine dependence, and that impacted everything else.  And the fact that he was selling cannabis, in my mind from a behaviour point of view, isn’t related specifically to a cannabis dependence, it’s related to doing what one needs to do to get money or to get access to the drug of dependence…

   RESPONDENT:       So, in that sense, cannabis is the gateway drug?

   DR YOXALL:             Yes.  Well, it depends on how we describe gateways, and I think there’s different definitions of it.  I mean, I suppose, you know, in my mind, a gateway drug, there’s a more proximate relationship between the commencement of one to the commencement of the other. 

   So we generally use the gateway theory as you start one substance, it just inhibits you and impairs judgement, creates a propensity for further experimentation, openness to experience; you try something else, and then on you go. 

   It doesn’t usually relate to somebody who’s smoked cannabis for a couple of decades, at least, off and on, and then finds himself in a scenario where he starts to use methamphetamine. And not just methamphetamine smoking, but intravenously. It’s quite a substantially different progression of behaviour.

   (Emphasis added.)

5. On the basis of Dr Yoxall’s opinion that if the Applicant continues to abstain from drugs, his risk of reoffending will be very low.[98] Dr Yoxall said that:

   [98]Transcript, p 36 [10]-[15]; R1, G4, document I1, p 136 [11]; A2, document 31, pp 174-175.

   (a)By risk of reoffending, she means any kind of reoffending and that includes violent offending and other forms of reoffending:[99]

   [99]Transcript, p 41 [25]-[30], p 42 [45] and p 43 [5].

   He did have the methamphetamine dependence, and he didn’t engage in violent offending whilst he had the methamphetamine dependence, as far as I know.  So I don’t fundamentally think he’s at risk of violent offending.  And he’s shown that, even in methamphetamine dependence, he hasn’t engage [sic] in violent offending.  However, we can’t, or I can’t, ignore the fact that methamphetamine, as a drug of dependence, does tend to increase people’s erratic behaviour and, at times, aggressive behaviour. 

   (b)If the Applicant were to re-engage with methamphetamine, his risk of reoffending in drug offences would go up to moderate or high.[100] 

   [100]Transcript, p 40 [25].

   (c)In answer to the question of whether the Applicant’s risk of reoffending would increase if he were to leave a controlled environment and re-enter the community, Dr Yoxall stated:[101]

   [101]Transcript, p 36 [15]-[25], p 37 [5]-[40].

   DR YOXALL:             Yes.  But there’s conditions on that, yes.  My understanding, and I always look to what somebody’s managed in community before they go to prison, because there’s a range of factors that commonly precipitate and then perpetuate a substance dependence, and stress is one of them, not being able to cope with a variety of things in life and using a substance as an immediate way of coping.  And it’s fairly well-established that being charged with very serious criminal offences, you know, facing the criminal just system, potentially facing deportation, facing gaol, is a very stressful period in one’s life.  So for somebody to be able to cease a substance in the face of those stresses, is quite indicative.  Now, I’m aware that there are drug urine screens that he participated in that year, so we need to take his - there’s a degree of taking his word for it.[102]  There are some signs that his level of functionality changed, which would indicate or align with his claim that he ceased methamphetamine; and I’m not discussing cannabis at the moment. So there is a year roughly before he goes into a controlled environment…

   [102]At hearing, the Respondent directed Dr Yoxall to records of the Applicant’s urinalysis results while in custody, which were all negative (Transcript, p 36 [30]-[45], p 37 [5]).

   …

   RESPONDENT:        Because for that period there was negative urine analyses?

   DR YOXALL:             Yes, there was no positives, yes.

   RESPONDENT:        If the condition of [The Applicant’s] parole, should he be released from immigration detention, that he, (a) not commit an offence; and (b) that he must not be in possession or use any illicit drugs, including cannabis, including to present for urine analyses for illicit substances, would you consider that to be a protective factor?

   DR YOXALL:             Yes. One of the protective factors, yes.  Accountability and a level of supervision is certainly helpful, particularly for the transition back to community.

   RESPONDENT:        And when we say accountability, what role do his family also have?  They were there before?

   DR YOXALL:              Substantial, and they were there before.  I think the issue with protective factors often is not just present or not present, it’s the degree of weight of those factors.  And Mr Toroa certainly is a person who, from my assessment of him, this is lifechanging, this has changed his life, this will continue to change his life even if he remains in Australia, because there’s years of his life he won’t get back, and he’s acutely aware of that.  He’s particularly insightful, and I say that again the work that I do in this area.  The impact of the loss of his relationship, the separation from his son, the separation from the act of daily life he had, and the involvement he had with his father, and the rest of the family, has been profound and that’s not an uncommon thing, that when people have a lifechanging event where the deterioration or the spiralling down that they’ve been through for quite a while, hits the ultimate point and they end up in prison and having all these things at risk, then that weight of that protective factor becomes much stronger, because one’s experienced it firsthand, not just a thinking about it, but a reality of being separated from family and facing, over many years, the risk of being sent out of this country irrespective of where he’s going to.  So I think the weight is heavier now, and therefore the accountability is heavier.  Also his family members, there’s no secrets here, everybody knows what he has experienced, everybody knows the addictions he’s had, and that’s the other piece around substance use.  It tends to be a disorder that involves a large amount of concealing, because there’s a level of, at various points in time, shame and realisation that you don’t really want people to see you in that state.  And I think he described that he disappeared from people; he cared about, he disappeared from friends, he withdrew.  There’s no secrets now.  So that increases the accountability too, because everybody’s aware and they’re going to be watching.

   (Emphasis added.)

6. Dr Yoxall stated that her assessment of the Applicant’s insight into his offending was based on his written statements and from her conversations with him.[103] In particular, Dr Yoxall said she was impressed by the Applicant’s genuine ability to engage in those conversations and to articulate the details (for example, his journaling, mindfulness, physical and mental health and emotional regulation).[104]

   [103]Transcript, p 37 [45].

   [104]Transcript, p 39 [5].

7. As to the Applicant’s prognosis, Dr Yoxall stated:[105]

   The [Pathways] program he did was substantial, and I’ve detailed it in the first report.  I think - sorry, if I’m correct - it’s something like an entire year of two hours a week, something along those lines…

   …

   …it’s what he’s built in prison, you know, of regular engagement in physical training and fitness, which we actually know now, it’s clear in the literature, contributes to more stable mental health, management of stress, management of anxiety, management of depression.

   He’s got a bunch of very healthy behaviours now.  He’s also got good prospects for employment. 

   He’s got that prosocial influence, he’s got the circle of accountability. 

   He’s got the skills onboard that he’s learnt and he’s open to support in the community, if he needs it, and his [sic] linked in with the community group, HOPE... 

   …I think it’s an NGO, as I understand it, in Kalgoorlie, that can assist him in general support to return to community. That’s pretty rare. A lot of people I speak to assume, or make an assumption, that things are going to be fine when they go home.  And that’s normal human behaviour, you like to think that everything’s going to be fabulous once things change. The fact that he has reached out and considered, “What are my plans for returning home?  What are the things that I need to support me?”, shows a level of insight that you don’t see very often.  It’s more the other way around, convincing people they will need something that bridges them back to community. 

   And that’s not because he’s going to be tempted to [sic] back to old associates and smoke meth, it’s more because he’s lived in a very different environment for now [sic] four years, and returning to the outside world has its challenges. Actually going in detention, from a psychological point of view, assists because you get greater freedoms, you can use your phone, you can use your Facetime, you can watch television, you can do as you choose to some degree, so that actually helps to transition.  But you still actually need supports going back to community, because it can be challenging. Changes, positive or negative, can be stressful.  So for him to say, “I actually need, in addition to my wonderful family support, I need these things”, is really insightful…

   [105]Transcript, p 43 [20], p 44 [30]-[40] and p 45 [5].

   DISCRETION TO REFUSE TO GRANT THE VISA

8. Having determined the Applicant does not pass the “character test,” the Tribunal must determine whether the discretion should be exercised to revoke the Cancellation Decision.

   IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

9. As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No. 99, there is another reason why the Cancellation Decision should be revoked.[106]

   [106]Pursuant to s 501CA(4)(b)(ii) of the Migration Act.

10. The Applicant contends that in circumstances where:[107]

    (a)His risk of reoffending is very low, as opined by Dr Yoxall;

    (b)The bests interests of his minor niece weigh heavily in favour of revocation;

    (c)He has significant ties to Australia; and

    (d)He would face significant impediments should he return to New Zealand,

    the Cancellation Decision should be revoked.

    [107]See for example, transcript, p 9 [30]-[35] and p 53 [40]-[45].

11. The Respondent is of the view, however, that there is not “another reason” why the Cancellation Decision should be revoked.[108]

    First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 99)

    [108]R3 [60].

12. Paragraph 8.1(1) of Direction No. 99 provides that:  

    (1)  When considering protection of the Australian community, decision-makers 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.

13. Paragraph 8.1(2) of Direction No. 99 then provides:  

    (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 of Direction No. 99)

14. Paragraph 8.1.1(1) of Direction No. 99 provides:[109]

    [109]See also Direction No. 99 para 8.1(2)(a).

    (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).

    h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    (Emphasis added.)

1. In relation to the nature and seriousness of his offending conduct, the Applicant submitted that:[110]

   [110]A1[29]-[40].

   (a)Prior to his recent drug offending, he had an insubstantial criminal history in Australia, consisting of one unrelated offence, for which he was fined, approximately fifteen or sixteen years prior to the recent offending conduct.

   (b)His offending has not involved violent or sexual crimes, crimes of a violent nature against women or children; or involved acts of family violence: Para 8.1.1(1)(a) of Direction No. 99.

   (i)While he has one incident of violent offending (common assault) on his criminal history, this offence is historical (from over 20 years ago) and should be characterised as a “one-off” incident, which resulted in a fine and no further punishment. 

   (ii)In particular, the Applicant has never repeated this behaviour nor otherwise demonstrated a tendency towards violent offending.

   (c)Similarly, no aspect of his offending that led to his term of imprisonment meets the description of any of the conduct or matters outlined in para 8.1.1(1)(b) of Direction No. 99.

   (d)With respect to para 8.1.1(1)(c) of Direction No. 99:

   (i)The Applicant’s sentence goes to the nature of his offending. The structure of the Applicant’s sentence on 15 March 2019 has two aspects:

   (A)  The total effective sentence (or head sentence) of five years and four months’ imprisonment, which reflects the various aggravating factors, being the seriousness of the Applicant’s offending, the importance of general deterrence and the importance of specific deterrence; and

   (B)  The parole eligibility date after three years and four months’ imprisonment which reflects the various mitigating factors, being his guilty plea, his cooperation with the police and his personal circumstances.[111]

   (ii)It has been over four years since the Sentencing Judge made her remarks[112] and the Applicant has gone on to continue taking steps towards his rehabilitation. 

   (iii)The sentence given for the Applicant in his 2002 common assault offending, being a $250 fine, also goes to the nature of his earlier offending as being of limited seriousness.

   (e)With respect to para 8.1.1(1)(d) of Direction No. 99, there was an increase in the seriousness of his offending insofar as the more serious offending[113] occurred after the less serious offending.[114] However, this does not amount to a trend. In particular, it is clear that all of his recent offending occurred within a short period in 2017, and his 2002 offending is of an entirely different nature. In this respect, there is no demonstrated trend of increasing seriousness of his offending over time, as all of his drug offending stemmed from the same period, in the same course of action in 2017. The sentences were handed down at different times in 2018 and 2019 because they were committed to different courts due to the varying levels of seriousness of each charge, and the need for the District Court judge to travel on circuit to Kalgoorlie.

   (f)The intention of para 8.1.1(1)(e) of Direction No. 99 is to assess the cumulative nature of a series of offences spanning over time, where offending is frequent and increasing in seriousness. This is not the case where there was limited frequency to the offending[115] and this particular period of offending should be understood in the context of the Applicant’s drug addiction at the time.  Moreover, the Applicant had a very limited criminal history prior to his recent drug offending. Accordingly, the cumulative effect of the Applicant’s repeated offending is limited to the effect of the offending within that three-month period.

   (g)With respect to para 8.1.1(1)(f) of Direction No. 99, the Applicant acknowledges he provided incorrect information to the Australian Government when he declared he had no criminal convictions in the course of Incoming Passenger Cards upon his arrival in 2005 and 2010.[116]  He accepts responsibility and is remorseful for his mistake, yet offers the explanation that at the time he completed the cards he was genuinely unaware that he had a conviction from 2002, given that his common assault offending had been dealt with by way of fine.[117]  In these circumstances, these false declarations are better described as a mistake rather than intentionally misleading, and should therefore not weigh against him, or, given the context and at its highest, bear minimal weight.

   (h)Paras 8.1.1(1)(g) and 8.1.1(1)(h) of Direction No. 99 are irrelevant because, respectively, he has never been formally warned or been made aware in writing of the consequences of further offending on his migration status and all of his offending was committed in Australia.

   [111]The Applicant identified his personal circumstances as including his “very limited” criminal record prior to his most recent offending, his family relationship, his long history of stable employment in Australia, his relatively short period of offending, his drug addiction, loss of employment and loss of his long-term relationship in 2016 and 2017, his pro-social choices and employment since 2017 and his positive rehabilitation prospects and steps taken towards that outcome: A1 [33(b)(iii)].

   [112]See sentencing remarks dated 15 March 2019: R1, G4, document B.

   [113]Being the offences the Applicant committed in 2017.

   [114]Being the offences the Applicant committed in 2002.

   [115]The Sentencing Judge remarked that the offending was committed on 11 days over a three-month period in 2017: R1, G4, document B, p 28.

   [116]R1, G4, document F, p 53 and document G, p 54.

   [117]A2, document 1 [28].

2. The Respondent made the following observations and contentions in relation to the nature and seriousness of the Applicant’s offending conduct:[118]

   [118]R3 [12]-[26].

   2002 assault[119]

   [119]On 6 January 2002, the Applicant punched Mr T in the left eye, at a party. The Applicant’s assault was in apparent retribution for Mr T having unlawfully hit the Applicant’s father by breaking a glass bottle against his head earlier that night (late in the night of 5 January 2002): See R2, document 1(c)(xxiii) pp 66-67. The Applicant was convicted of common assault and Mr T was charged with assault occasioning bodily harm in respect of the glassing.

   (a)The Applicant’s common assault conviction is self-evidently an offence of violence for the purposes of para 8.1.1(1)(a)(i) of Direction No. 99, which is to be regarded as very serious.  However, the Respondent agrees with the Applicant’s contention that this violent offence appears to have been a “one off” incident,[120] which had not been repeated.

   2017 offending[121]

   (a)In respect of the four counts of offering to supply cannabis, three of those counts were offering to sell 14 grams of cannabis to the Applicant’s then 17-year old nephew (on each occasion).[122]

   (b)In respect of the eight counts of offering to supply methamphetamine, these related to offers to supply between 0.1 of a gram to 1.75 grams of methamphetamine to 7 different customers.[123]

   (c)The conspiracy to traffic in methamphetamine count related to an arrangement made between 5 October 2017 and 6 October 2017 to purchase 10 ounces (or 250 grams) of methamphetamine for $85,000.[124]

   (d)The Tribunal is required by para 8.1.1(1)(c) of Direction No. 99 to have regard to the sentences imposed by the Courts in respect of the nature and seriousness of the Applicant’s criminal and other serious conduct to date.[125]

   (e)It accepts that the total effective sentence imposed upon the Applicant is reflective of the nature and seriousness of the Index offending having regard to mitigating and aggravating circumstances of that conduct and the Applicant’s antecedents.[126]

   (f)However, the Applicant’s parole eligibility and the length of his parole term are governed by ss 89(4) and 93(1)(b) of the Sentencing Act 1995 (WA) (the Sentencing Act). That is, a sentencing judge must make a parole eligibility order if none or only one of the four factors set out in s 89(4) of the Sentencing Act are present (here only the seriousness of the offending was relevant)[127] and because the parole term exceeded four years, the Applicant’s parole eligibility commenced when he had had served two years less than the parole term. Of course, whether the Applicant was released to parole was a matter for the Prisoner’s Review Board and may relate to the Tribunal’s assessment of the risk of reoffending under para 8.1.2 of Direction No. 99.[128]

   (g)Having regard to the above matters and the relevant portions of Direction No. 99, the Applicant’s 2017 offending should be considered very serious.

   [120]A1 [31].

   [121]See [6] and [8] above. The Applicant’s charges arose from the execution of a police search warrant on 14 December 2017, in relation to his suspected involvement in a theft: R1, G4, document B, p 29. The Applicant was in possession of cannabis plant, drug paraphernalia, stolen property and a concealed knife: R1, G4, document B, p 29 and R2, document 1(b) pp 5-6. These offences were discovered by police upon review of the Applicant’s telecommunications on Facebook and Signal and the Applicant subsequently made admissions to drug dealing (but not to the conspiracy count) under caution: R1, G4, document B, p 29.

   [122]R1, G4, document B, p 28. See [38(e)] above and R2, document 2(c), p 76.

   [123]R1, G4, document B, p 28.

   [124]R1, G4, document B, p 29.

   [125]Citing Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 regarding the proper approach to para 8.1 of Direction No. 99.

   [126]See A1 [33].

   [127]Citing Truslove v Western Australia [2015] WASCA 1 at [18].

   [128]Citing Nguyen v Minister for Home Affairs [2020] FCA 127; (2020) 170 ALD 38; See also Re Peterson and Minister for Immigration [2020] AATA 1256 at [75]-[77]. The Respondent noted that the precise terms of the parole order and the Board’s reasons for decision were not known to it and did not appear in the material received under summons from the Department of Justice.

   In reply, the Applicant submitted that the Applicant’s parole was denied in May 2022 at his own request (A4 [6], citing R2, document 2(d), p 83). The Applicant submitted that this request was made on the basis that his immigration matters were still outstanding, and that he preferred to wait in prison than immigration detention as he wanted to remain in his position as the head librarian at Albany Regional Prison (A4 [6]).

   The Applicant’s parole order is now available (A2, document 19, p 36), which the Applicant agrees is relevant to the Applicant’s risk of reoffending and should be considered under para 8.1.2 of Direction No. 99: see [85(k)] below.

3. The first primary consideration, Protection of the Australian community from criminal or other serious conduct,[129] requires the decision-maker to look at “the non-citizen’s criminal offending or other conduct to date” (emphasis added). [130]  For completeness, the Tribunal notes there is no “other conduct” to date that falls for consideration in this matter.

   [129]Para 8(1) of Direction No. 99.

   [130]Direction No. 99, para 8.1.1(1).

4. In determining whether the Applicant’s conduct should be viewed as serious, the Tribunal notes the facts and circumstances of the Applicant’s offending and the conviction imposed. 

5. The Applicant’s offending conduct is briefly detailed above.[131] The facts of the Applicant’s offending, and its context, are set out in the sentencing remarks of Petrusa DCJ on 15 March 2019 as follows:[132]

   [131]See [6]-[9] above.

   [132]R1, G4, document B, pp 27-36.

   In essence, though, the 12 charges of offering to supply prohibited drugs occurred on 12 separate occasions on 11 days over a three-month period in 2017.  Four of those occasions involved the offer to supply cannabis, three of those were to your 17-year old nephew[133], on each of the occasions you offer your nephew 14 grams of cannabis. The 8 counts relating to methamphetamine relate to the supply of between 0.1 gram of - 0.1 of a gram and 1.75 grams of methamphetamine to seven different customers.

   [133]See [39(e)] above and R2, document 2(c), p 76.

   You communicated with your various customers by Facebook messenger, text message or by an encrypted communications application known as Signal.  It is clear from the communications that yours was a predominantly cash business, although from time to time you were prepared to exchange drugs for property….

   …

   I note that the search [of the Applicant’s premises, by the police] was related to your suspected participation in a theft. You were interviewed by police after they discovered the entries on your phone and you made admissions about your drug dealing.  You admitted that you were dealing in drugs to finance your own habit and, it would seem, to support yourself. You admit to having a considerable methamphetamine habit of your own at this time, saying that you were using daily and, if finances allowed, twice daily.

   You occasionally used cannabis, you said. It is also clear that you were somewhat surprised that the police were able to access Signal, and this may well explain your cooperation with police in providing them with the password to your phone, nonetheless you cooperated in this regard though you made no admissions in relation to the conspiracy matter.  The charges together with the information about the surrounding circumstances makes it clear that you had a thriving business in dealing predominantly in methamphetamine, albeit you also dealt in cannabis.

   Given the scale of your business, there was clearly a commercial element, above and beyond financing your own use, in this enterprise.  Given the quantity of drugs involved in the conspiracy charge, it is clear that whilst you were dealing at the street level you were doing so very successfully.  The extent of your distribution was significant and accordingly the subsequent harm to the community great, as such I consider you were involved in the distribution of drugs at least at the mid-level if not the upper-mid-level.

   …

   In 2016, it seems you became dissatisfied with your work, you felt bored and began to question the relevance of your work.

   It was in this context that your recreational drug use escalated and ultimately led to your loss of employment.  You had used drugs recreationally from the age of 19 but were using daily at the time of this offending.  It was in this context you began to deal drugs.

   …

   In relation to your offending, it is said that you did not, at the time, consider the consequences of your actions for others.  You did not consider the effect on your teenage nephew[134] or to supplying others including a woman with a child.  You did not consider what these people may have done in order to pay for the drugs you provided.

   I find this difficult to accept and understand, given the detrimental effect it was having on your own life, given the breakdown of your own relationship, the loss of your job and, it would seem, the fact that you yourself were resorting to dishonesty.

   Further, there is a lot of material in the media about the negative effects of drugs in our community…

   …

   It is clear to me that you have been a hardworking member of our community for most of your life.  Your decline into regular drug use and dealing was for a relatively short period, though the level of your dealing was significant and involved commercial gain…    

   [134]See [39(e)] above and R2, document 2(c), p 76.

6. In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction No. 99, the Tribunal has regard to the fact that the Applicant has been in Australia for over 30 years, having come to Australia as a 10-year-old. In that time, the Applicant has engaged in offending that the parties have similarly separated in two separate categories (being the 2002 offending and the 2017 offending). The Tribunal considers this separation is appropriate given there were 15 years between the offending conduct the subject of each category and no other relevant conduct in between. 

7. In relation to para 8.1.1(1)(a) of Direction No. 99, the Tribunal finds that the Applicant’s offending in 2002 is, by its very nature, to be viewed very seriously.[135]  The Applicant has not committed crimes of a violent nature against women or children,[136] nor has he engaged in acts of family violence.[137]

   [135]Para 8.1.1.(1)(a)(i) of Direction No. 99.

   [136]Para 8.1.1(1)(a)(ii) of Direction No. 99.

   [137]Para 8.1.1(1)(a)(iii) of Direction No. 99.

8. The Tribunal acknowledges that the Applicant’s offending in 2002 was a one-off incident that occurred approximately 15 years earlier and is unrelated to his drug offending. The Tribunal is therefore of the view that the Applicant’s offending in 2002 (and his offending in 2017, for completeness) does not reflect a tendency for violent and/or sexual crimes.[138]

   [138]Para 8.1.1(1)(a) of Direction No. 99.

9. The Tribunal has regard to the fact that his drug offences are clearly serious crimes, and include a victim who was 17 years of age, who in the context of the Applicant’s conduct was a vulnerable member of the community.[139]  The Tribunal notes that the Applicant’s evidence that his offending took place at a time when he was addicted to drugs,[140] which increases the potential for catastrophic harm.

   [139]Para 8.1.1(1)(b)(ii) of Direction No. 99.

   [140]See [39(a)] above.

10. The Applicant’s drug offending involved conduct for which he ultimately was sentenced to five years and four months imprisonment.  This conduct formed the basis of the finding that the Applicant did not pass the character test[141] and is, in the Tribunal’s view, probative of the seriousness of that offending conduct. The overall seriousness of the Applicant’s offending is further indicated by his prison sentence,[142] being the last resort in the sentencing hierarchy.  Specifically, in the Applicant’s case:[143]

    You have to understand that this type of offending is one of the rare types of cases in which even a youthful first offender will not ordinarily be spared imprisonment.  That is to say the imposition of a sentence other that immediate imprisonment is, as a matter of fact, exceptional…

    [141]Para 8.1.1(1)(b)(iii) of Direction No. 99.

    [142]Para 8.1.1(1)(c) of Direction No. 99.

    [143]R1, G4, document B, p 36.

11. The Tribunal notes that the Applicant did not contend that his drug offending was not serious.  However, the Applicant submitted that his offending had arisen as a means to finance his own drug use.  That is, his offending was not for commercial gain, but to feed his habit.  While the Sentencing Judge accepted this proposition in part, she also noted that given the quantity of drugs in the conspiracy charge, there was clearly a commercial element, above and beyond financing his own use, that his distribution was significant and subsequently of great harm to the community.

12. In considering para 8.1.1(1)(b) of Direction No. 99, the Tribunal is to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage;[144] and any crime committed while in immigration detention.[145]  In the Tribunal’s view, none of the Applicant’s offending or other conduct falls within these categories. Similarly, the Tribunal considers that none of the Applicant’s offending or other conduct falls within the scope of paras 8.1.1(1)(g)[146] or 8.1.1(1)(h)[147] of Direction No. 99.

    [144]Para 8.1.1(1)(b)(i) of Direction No. 99.

    [145]Para 8.1.1(1)(b)(iv) of Direction No. 99.

    [146]The Applicant was never formally warned about the consequences of further offending on his migration status.

    [147]The Applicant has no known criminal history outside Australia.

1. The Tribunal proceeds on the basis that Direction No. 99 establishes a norm of the Australian community’s expectations, which should be applied by the Tribunal irrespective of whether the Applicant is found to pose a measurable risk of causing physical harm to the Australian community, and without reference to any independent assessment of the community’s expectation in this case.[246]

   [246]Referring to paras 8.5(3) and 8.5(4) of Direction No. 99.

2. The Tribunal does not consider that the Applicant’s offending is of the kind envisioned by para 8.5(2) of Direction No. 99.  However, as the parties have conceded, the Applicant’s conduct has breached this community expectation by not obeying Australian laws. The Applicant has engaged in serious drug offending and consequently, the expectation of the Australian community would be that the Visa should remain cancelled.

3. In weighing this consideration, the Tribunal is also guided by the principles set out in para 5.2 of Direction No. 99.  Applying the principles in paras 5.2(5) of Direction No. 99, the Tribunal is of the view there may be a higher level of tolerance for the Applicant’s criminal conduct, given that he has lived in Australia for most of his life, including his formative years.

4. Due to the application of the “norm” in para 8.5(1) of Direction No. 99, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, the Tribunal considers that this primary consideration weighs moderately against the revocation of the Cancellation Decision.

   Other considerations (para 9 of Direction No. 99)

5. Paragraph 9 of Direction No. 99 states:

   (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)legal consequences of the decision;

   b)extent of impediments if removed;

   c)impact on victims;

   d)impact on Australian business interests

   Legal consequences of decision under section 501 or 501CA (para 9.1 of Direction No. 99)

6. Paragraph 9.1 of Direction No. 99 states:

   (1)   Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

   (2)  In A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

   (3)  International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

   (Emphasis added.)

7. Paragraph 9.1.2 of Direction No. 99 states:

   (1)  Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.

   (2)  However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.

   (3)  Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

8. The Applicant submitted that the present consideration is not relevant to the Applicant’s circumstances.[247]

   [247]A1 [93].

9. In relation to the legal consequences of the decision, the Respondent submitted that:[248]

   (a)The Applicant is an unlawful non-citizen as a consequence of the mandatory cancellation, who must be detained until he is either removed from Australia or granted a visa.

   (b)Whilst he can apply for a protection visa, no evident basis for a protection finding in respect of New Zealand arises on the material before the Tribunal.

   (c)The Applicant will be prevented by s 501E of the Migration Act from applying for any other visa in Australia (beyond a removal pending bridging visa) in the event that the Tribunal affirms the delegate’s decision.

   (d)Indefinite detention is unlikely to arise as an immediate legal consequence of this decision in circumstances where removal to New Zealand is unlikely to be subject to any practical difficulties.

   [248]R3 [51] and [52].

10. This consideration requires the Tribunal to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[249]

    [249]Para 9.1 of Direction No. 99.

11. The Applicant did not make any representations with respect to non-refoulement issues arising from his return to New Zealand or with respect to any other legal consequence of the Cancellation Decision; and considers this consideration bears no relevance to his circumstances. The Respondent submitted there is no basis for a protection finding on the evidence and (therefore) indefinite detention is unlikely to arise.

12. The Tribunal acknowledges the legal consequences of a decision not to revoke cancellation of the Visa.  As the effect of cancellation and removal are taken into account under other considerations[250] the Tribunal considers this consideration should be given neutral weight.

    [250]Including the third and fourth primary considerations and the “extent of impediments if removed” considerations.

    Extent of impediments if removed (para 9.2 of Direction No. 99)

13. Paragraph 9.2 of Direction No. 99 states:

    (1)Decision-makers must consider the extent of any impediments that the non­ citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in 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.

    (Emphasis added.)

14. In relation to the extent of impediments if removed to New Zealand, the Applicant submitted this factor weighs heavily in favour of revocation of the Cancellation Decision because:[251]

    (a)While the Applicant is in generally good health, he is “not young,” and accordingly he has established a family and way of life in Australia which cannot as easily be supplanted overseas.

    (b)He is concerned that, as a middle-aged man with a serious criminal record, he will have to rely on his reputation to find work. Therefore, given his lack of a professional reputation in New Zealand and of connections outside of his sister Ngamo, he will be disadvantaged and is concerned he will suffer from significantly lowered job prospects and resulting financial difficulty.

    (c)The Applicant has only one family member in New Zealand, his sister Ngamo, who has a family of her own, including four minor children.

    (d)The Applicant’s removal to New Zealand would have a very negative effect on all of his family members, given their close-knit relationship.  In particular, the Applicant’s elderly father (who was key to the Applicant’s rehabilitation) would likely be unable to travel to New Zealand, given his age, and it would result in their permanent separation.  The Applicant is concerned he would never get to see his father again.  If he were separated from his family, the Applicant would be significantly more likely to relapse and reoffend. To remove this important protective factor would lead to significant impediments to maintaining a productive life in New Zealand.

    [251]A1 [94]-[100].

15. The Respondent’s position with respect to the extent of impediments to the Applicant if he were removed is:[252]

    (a)He is 43 years of age and in good health.

    (b)There are no substantial language or cultural barriers between Australia and New Zealand and they have a comparable health and social security system, to which he will have access. There are also organisations providing assistance to those removed from Australia to New Zealand, such as People at Risk Solutions.

    (c)The Applicant is clearly still in touch with his sister Ngamo, who resides in New Zealand.[253]

    However, it concedes that the Applicant is likely to face some hardship as a consequence of his removal to New Zealand, having limited ties to that country.

    [252]R3 [54]-[56].

    [253]Transcript, p 11 [45]. See also A2, document 22.

16. Having considered the available evidence and the parties submissions in the context of para 9.2 of Direction No. 99, the Tribunal accepts that the Applicant would likely face significant emotional and social hardship at the prospect of returning to New Zealand.

17. There is no evidence before the Tribunal regarding any health or medical issues suffered by the Applicant.[254]  While the evidence is it would be somewhat of an inconvenience for him to rely on his sister Ngamo for social and economic support (at least initially), should he be removed, his evidence is also that he expects she would indeed support him in this manner if required.[255]  The Tribunal also accepts the protective factor of the Applicant’s family in Australia would be lost if he were to be removed.

    [254]Para 9.2(1)(a) of Direction No. 99.

    [255]Para 9.2(1)(c) of Direction No. 99.

18. The Tribunal considers the Applicant would also face financial hardship upon his return to New Zealand (should he be removed): however, given the Applicant’s work experience, the Tribunal is of the view that this hardship would be temporary.[256]

    [256]Para 9.2(1)(c) of Direction No. 99.

19. There is also nothing in the evidence before the Tribunal to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in New Zealand taking into account the Applicant’s age and lack of language or cultural barriers.[257]

    [257]Para 9.2(1)(b) of Direction No. 99.

20. Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weighs moderately in favour of revocation.

    Impact on victims (para 9.3 of Direction No. 99)

21. Paragraph 9.3 of Direction No. 99 states:

    (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.

22. Neither party made any submission on this consideration (other than to say this consideration bears no weight in the present matter).[258] The Tribunal is satisfied that the impact on victims consideration is not a relevant consideration in this matter and is therefore given neutral weight.

    [258]A1 [105]; R3 [58].

    Impact on Australian business interests (para 9.4 of Direction No. 99)

23. Paragraph 9.4 of Direction No. 99 states:  

    (1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

24. The parties[259] and the Tribunal are satisfied that this factor is not relevant in the present case and should be given neutral weight.

    [259]A1 [106]; R3 [59].

    CONCLUSION - THE WEIGHING EXERCISE

25. As to how to apply the primary and other considerations in Direction No. 99, the Tribunal in guided by Deputy President Boyle in Wightman:[260]

    [260]Again, noting that the provisions of Direction No. 99 contain generally similar wording to the corresponding provisions in Direction No. 90. See also fn 234 above.

    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 [31] above). It provides:

    (1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (2)Primary considerations should generally be given greater weight than other considerations.

    (3)One or more primary considerations may outweigh other primary considerations.

    A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.

    The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:

    Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …

    (Emphasis added, footnotes omitted.)

26. The Tribunal follows the approach directed by the above cases. The Tribunal also takes guidance from the principles set out in paragraph 5 of Direction No. 99, in particular paragraph 5.2(6) of Direction No. 99,[261] which in turn refers to paragraph 8.5(2) of Direction No. 99.[262]

    [261]See [30] above.

    [262]See [128] above.

27. As to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 99), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring.  For the reasons set out in paras [54]-[98] above, the Tribunal has found that given:

    (a)The nature and seriousness of the Applicant’s conduct to date is very serious (paras 8.1(2)(a) and 8.1.1 of Direction No. 99); and

    (b)The serious nature of the harm and the very low, yet unacceptable risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 99),

    the primary consideration of the protection of the Australian community weighs strongly against revocation of the Cancellation Decision.

28. Looking at the second primary consideration (para 8.2 of Direction No. 99), family violence is not applicable to this application and therefore carries neutral weight.

29. With respect to the third primary consideration, the strength, nature and duration of ties to Australia (para 8.3 of Direction No. 99), the Tribunal has found that this primary consideration weighs strongly in favour of revocation of the Cancellation Decision (see paras [103]-[116]).

30. With respect to the fourth primary consideration, the best interests of minor children in Australia (para 8.4 of Direction No. 99), the Tribunal has found that for the reasons set out in paras [117]-[127] above, the best interests of the Applicant’s minor niece weighs moderately in favour of revocation of the Cancellation Decision.

31. The fifth primary consideration, the expectations of the Australian community (para 8.5 of Direction No. 99), as it must and as is the “norm,” weighs moderately against revocation of the Cancellation Decision.

32. In relation to the “other considerations” identified in para 9 of Direction No. 99:

    (a)The Tribunal is not satisfied that the Applicant’s current evidence enlivens Australia’s non-refoulement obligations, as part of the legal consequences of a decision under section 501CA, therefore the Tribunal considers this consideration carries neutral weight (para 9.1 of Direction No. 99).

    (b)The extent of impediments if the Applicant were removed from Australia weighs moderately in favour of revocation (see paras [147]–[154] above) (para 9.2 of Direction No. 99).

    (c)The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 99).

    (d)The impact on Australian business interests (para 9.4 of Direction No. 99) has no relevance to the present matter and hence is a neutral consideration.

1. Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are greater than those weighing against revocation:

   (a)The third primary consideration weighs strongly in favour of revocation, the fourth primary consideration weighs moderately in favour of revocation and the extent of impediments if removed consideration weighs moderately in favour of revocation.

   (b)The first primary consideration weighs strongly against revocation and the fifth primary consideration weighs moderately against revocation.

   (c)The remaining considerations carry neutral weight.

2. Further, paragraph 7(2) of Direction No. 99 states that “primary considerations should generally be given greater weight than the other considerations”.  There is nothing before the Tribunal, in its view, such that this general principle should not apply in the present matter. 

3. In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No. 99, the Tribunal is satisfied that there is “another reason” why the Cancellation Decision should be revoked.

4. Therefore, the correct or preferable decision is to set aside the Reviewable Decision and to substitute a decision that the cancellation of the Visa be revoked.

   DECISION

5. The Reviewable Decision, being the decision of a delegate of the Respondent dated 27 February 2023, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 171 (one hundred and seventy-one) paragraphs are a true copy of the reasons for the decision herein of L M, Gallagher

..................[Sgd]......................................................

Associate

Dated: 20 June 2023

Date of hearing:	2 May 2023
Solicitors for the Applicant:	Ms J Samuta, Samuta McComber Lawyers
Solicitors for the Respondent:	Mr J Papalia, Australian Government Solicitor

The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.

See s 501CA(4)(a) of the Migration Act and [12]-[14] above.