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

TQYD and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3025 (22 September 2023)
Division:                  GENERAL DIVISION
File Number:2023/4925
Re:TQYD
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Justin Owen
Date:22 September 2023
Place:Sydney

Pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 28 June 2023 to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
................................[SGD]........................................
Deputy President Justin Owen

CATCHWORDS
MIGRATION – Cancellation of Class BB Subclass 155 Five Year Resident Return visa under section 501(2) of the Migration Act 1958 (Cth) – where Applicant does not pass the character test – where Applicant has substantial criminal record – consideration of the nature and seriousness of offending – consideration of the risk to the Australian Community – consideration of the strength, nature and duration of the Applicant’s ties to Australia –consideration of the expectations of the Australian community – consideration of the extent of impediments if Applicant is removed from Australia – consideration on the impact of Australian business interests – whether the power to cancel should be exercised under section 501(2) of the Migration Act 1958 (Cth) – consideration of Ministerial Direction No. 99 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
SECONDARY MATERIAL
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Justin Owen
22 September 2023
INTRODUCTION

The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (“the Respondent”) made under section 501(2) of the Migration Act 1958 (Cth) (“the Act”) on 28 June 2023, to cancel his Class BB Subclass 155 Five Year Resident Return visa (“the Visa”).
The Applicant is a male South Korean national born in February 1993. At the time of this decision, he is 30 years of age. The Applicant has resided in Australia for 17 years, having arrived in September 2006 as a dependent of his mother, Ms JC who held a Class BN Subclass 136 Skilled – Independent visa. The Applicant was 13 years of age when he first arrived in Australia.
The Applicant’s visa was cancelled on 28 June 2023 under section 501(2) of the Act on the basis that he did not pass the character test. On 4 October 2021, the Applicant was notified by the Department of Home Affairs (“the Department”) that it was intending to consider cancellation of his visa under s 501(2) of the Act on the basis that it reasonably suspected the Applicant did not pass the character test because of his “substantial criminal record”. On 5 November 2021, the Applicant provided written submissions through his representative in response to the notice. On 28 June 2023, the Respondent exercised their discretion to cancel the Applicant’s visa under s 501(2) of the Act. There followed an application to the Tribunal on 7 July 2023 wherein the Applicant sought review of the delegate’s cancellation decision made on 28 June 2023.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of his conviction on 24 June 2010 in the District Court of New South Wales (NSW) of the offence of Aggravated sexual assault – threat to inflict ABH victim with weapon, for which he was sentenced to a term of imprisonment of eight years.
The issues for determination is whether the Tribunal reasonably suspects that the Applicant does not pass the character test, and whether the Applicant satisfies the Tribunal that he passes the character test. If the ground for cancellation is established, the Tribunal will consider how the discretion to cancel should be exercised. Paragraph 8 of Direction 99 sets out the matters which must be considered when deciding this matter.
The Applicant does not dispute that he does not pass the character test.
The hearing was held on 5 and 6 September 2023. The Tribunal received oral evidence from the Applicant, Ms JC, the Applicant’s brother (Mr JC), and clinical and forensic psychologist Dr Mark Milic.
For the following reasons, pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 28 June 2023 not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
LEGISLATIVE FRAMEWORK
Subsection 501(2) of the Act states that the Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Does the Applicant Pass the Character Test?
The character test is defined in section 501(6) of the Act. Relevantly, paragraph 501(6)(a) of the Act states that a person does not pass the character test if the person has a substantial criminal record, as defined in section 501(7) of the Act. Paragraph 501(7)(c) of the Act provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Should a finding be made that the Applicant does not pass the character test, the discretion to cancel the visa under s501(2) is enlivened. The exercise of discretion is governed by considerations set out by Direction No. 99 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (Direction 99).
The Tribunal has been provided with the report of the Australian Criminal Intelligence Commission dated 16 October 2020 setting out the Applicant’s offending and convictions. Information in the Respondent’s Statement of Facts, Issues and Contentions, which the Tribunal accepts as accurate, indicates that the Applicant has been convicted of a range of offences since 2010. On 24 June 2010 in the District Court of New South Wales, the Applicant was convicted of Aggravated sexual assault – threat to inflict ABH victim with weapon for which he was sentenced to a term of eight years imprisonment.
The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test as defined under s501(2)(b) of the Act. This is not disputed by the Applicant.
On 7 July 2023 the Applicant applied to the Tribunal for review of the delegate’s decision.
Is there another reason why the original decision should be revoked under subsection 501CA(4)?
In considering whether to exercise this discretion, the Tribunal is bound by subsection 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[1] The Direction is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
[1] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90. Direction 90, in turn, was replaced by Direction 99 on 3 March 2023.
The Direction sets out the principles that provides a framework on how decision-makers should approach their task of deciding whether to exercise the discretion to cancel the visa under s501(2). For the purposes of deciding whether to exercise the discretion to cancel a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated 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 measurable 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) (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 measurable risk of causing physical harm to the Australian community.
Section 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Section 8 of the Direction sets out five primary considerations (“Primary Considerations”) that the Tribunal must take into account. The Primary Considerations include:
(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; and
(5)expectations of the Australian community.
Section 9 of the Direction sets out five other considerations (“Other Considerations”) which must be taken into account. The Other Considerations are:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
The Tribunal notes the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594:
“…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[2]
[2] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23] (Colvin J).
The Tribunal has had regard to the Applicant’s representations, as well as his submissions and evidence to the delegate. In addition, the Tribunal also has regard to the evidence subsequently provided to the Tribunal by the Applicant and the Respondent, and the Applicant’s witness.
BACKGROUND FACTS
The Applicant’s mother and younger half-brother are Australian citizens and reside in Sydney, Australia. The Applicant’s stepfather, who is an Australian citizen, grandmother and cousin reside in South Korea. The Applicant states he has lost contact with his stepfather since he divorced his mother and returned to South Korea. The Applicant does not have any contact with his biological father, who left the family when the Applicant was three months old. He is presumed to live in South Korea.
The Applicant, his mother, stepfather and half-brother moved to Sydney from Korea in September 2006 when the Applicant was 13 years of age. The Applicant attended an English Language School for one year before transferring to a mainstream high school for Year 8. The Applicant claims his first year in Sydney was difficult due to the language barrier and racism he experienced at school, his struggle to make friends, and the pressure he felt from his parents to perform well academically. The Applicant and his family moved to Perth in 2007 where the Applicant attended a state high school. The Applicant stated he found the move difficult as well, but eventually grew to enjoy living in Perth. The Applicant, his mother and half-brother returned to Sydney in 2008. His stepfather remained in Perth to continue working. The Applicant transferred to a school in Chatswood and again found the move difficult, including the process of making new friends again. The Applicant states he also faced learning and adjustment difficulties and continued to experience racism. In April 2009, the Applicant’s stepfather returned to live with the family in Sydney.
The Applicant claims to have been in a relationship with Ms YA since 2020. Ms YA is a South Korean citizen and holds a Student visa, due to expire in March 2024.
The Applicant states he has a close circle of friends in Australia.
The Applicant claims to have obtained employment in the hospitality, retail and tiling industries in Australia and has provided payslips from various places of employment. He states that he provides financial support to his mother and younger half-brother, and his mother states that the Applicant is the “breadwinner in our family, and we rely heavily on his income”. Whilst this is contrary to Case Note Reports from Corrective Services that demonstrate a longstanding history of instability insofar as it concerns the Applicant’s ability to gain and maintain employment, the delegate also accepted that the Applicant has secured stable employment since his drug supply convictions in 2020.
The Applicant has provided positive character references from his employers, Mr LJ of MT, and Mr WDK attesting to the high standard of his work, his strong work ethic, reliability, responsibility and the positive working relationships he maintains with his co-workers.
The Applicant engaged in serious criminal offending within three years after arriving in Australia. He went on to reoffend in 2020.
24 June 2010 Conviction
On 24 June 2010, the Applicant was convicted in the District Court of NSW of the offences of Aggravated sexual assault and threat to inflict ABH victim with weapon; Aggravated robbery and use corporal violence; and Aggravated robbery. The Applicant pleaded guilty to these offences. The Applicant was 16 years of age at the time of committing these offences in March and April 2009. The Court took the Applicant’s age into account, however he was sentenced as an adult.
The Court accepted there were circumstances personal to the Applicant which may have influenced and/or explained his conduct and which otherwise impinged on his moral culpability. These included his youth and difficulty in adjustment to life in a new country. A psychologist described the Applicant as displaying “low mood” and he was diagnosed with “a low depression”. The Applicant also admitted to watching violent pornography around the time of his offending. He stated that these offences were motivated by his need for money.
In relation to the aggravated sexual assault conviction, the Applicant was sentenced to a term of imprisonment, comprising a head sentence of eight years, with a non-parole period of four years. The sentence commenced on 15 March 2010. The non-parole period expired on 14 March 2014, and the head sentence expired on 14 March 2018.
In relation to the aggravated robbery and corporal punishment conviction, the Applicant was sentenced to a fixed term of imprisonment of two and a half years, commencing on 15 May 2009.
In relation to the aggravated robbery conviction, the Applicant was sentenced to a fixed term of imprisonment of three years, commencing on 15 November 2009.
The Applicant served these sentences in juvenile detention. Whilst in detention, the Applicant was considered a low-risk inmate and was given extra privileges. The Applicant volunteered at Bear Cottage in Manly, a children’s hospice which provides end-of-life care for terminally ill children. The Applicant also volunteered at a wildlife park near Gosford.
The Applicant was selected to participate in a work-release program due to his good behaviour in detention. The Applicant worked in a factory in BMI in Somerby for 10 months. Through his wages, the Applicant saved approximately $20,000. He used some of this money – stated at the Tribunal’s hearing to be $5,000 - to go towards the $35,000 paid to the victim via the NSW victims compensation scheme.
The Applicant also undertook 65 individual sex offender counselling sessions when detained.
The Applicant completed his Higher School Certificate in detention, attaining an ATAR in the 70s.
Offending on 28 March 2009
At about 8:15pm on 28 March 2009, the victim, a 20-year-old woman, was walking along a street in Chatswood when she noticed the Applicant sitting on a fence. The Applicant followed the victim into another street where he grabbed her around the mouth. The victim felt a sharp object pressed against her face. The Applicant said, “If you make a noise I will kill you”. The Applicant then forced the victim to the yard of a nearby house where he directed her to remove her shirt. He also demanded the victim remove her pants, whilst he removed the victim’s underwear.

The Applicant then proceeded to sexually assault the victim, and attempted to take photos of the victim after forcing her to engage in oral sex. The assault lasted for at least half an hour and up to 45 minutes. During this time, the victim held fears that she may be killed. The Applicant then demanded that the victim “take out [her] wallet”. The Applicant took $40 from the victim’s wallet, before pushing the victim’s face and running away from the scene.
When the Applicant was arrested on 15 May 2009, police searched the Applicant and located a purple coloured broken pen which was tapered to a sharp point inside his pocket, along with a packet of cigarettes. Police allege that this was the weapon used to threaten the victim.
As a result of the Applicant’s offending, the victim suffered from a number of injuries including redness and abrasions to the surfaces of the vaginal and labial area consistent with forced penetration, and a two centimetre long horizontal incision, and two horizontal faint linear red marks, approximately four millimetres long, on the right side of her neck.
The Court considered the Applicant’s offending in relation to the offence of Aggravated sexual assault and threat to inflict ABH victim with weapon as sitting above the midrange of seriousness for this offence. The Court considered the Applicant’s offending in relation to the offence of Aggravated robbery and use corporal violence as falling below the midrange level of seriousness.
Offending on 5 April 2009
At about 6:40pm on 5 April 2009, the victim, an 18-year-old female high school student, was walking along a street in Chatswood. She observed the Applicant sitting on a fence on the other side of the road. The victim observed the Applicant stand up. She continued walking into another street, when she observed the Applicant standing on the other side of the street.
The Applicant then walked up behind the victim, reached around the front of the victim and covered her mouth. The victim felt something sharp press against her cheek. The Applicant said, “Don’t speak. Be quiet. Otherwise I’m going to kill you”. The Applicant repeated this about three times. The Applicant then said “Keep walking. Keep going”. As a result of the sharp instrument being pressed against the victim’s right cheek, she obtained a scratch approximately 30 millimetres long.
The victim and the Applicant walked whilst the Applicant was still holding his hand over the victim’s mouth. The Applicant then used his body to push the victim into a small gap between two houses and said, “Get in there”. A struggle ensued and the victim attempted to move the Applicant’s hand away from her mouth. The Applicant managed to keep his hand over the victim’s mouth as she said, “No”.
The Applicant then punched the victim in the stomach area, grabbed the victim’s handbag and ran back towards the street.
The victim yelled for help several times and chased the Applicant. The victim lost sight of the Applicant however then located him hiding in a garden. The victim said, “Give me my bag. You can have the money. I know you are in there”.
Two witnesses then approached and one of the witnesses called the police. The Applicant then ran from the garden and the victim and the other witness proceeded to chase the Applicant. The Applicant threw the victim’s handbag under a tree. The victim stopped to collect the handbag and the witness continued chasing the Applicant. The victim then saw that her wallet in her bag had been opened, and $70 cash was missing from it.
Two other witnesses also chased the Applicant and he was stopped by the witnesses. One of the witnesses said “just give her money back” and the Applicant handed $70 to the victim.
Police arrived shortly after and the Applicant was arrested.
In respect of the Applicant’s offence of Aggravated robbery, the Court considered there were features of this offending which increased the seriousness of the offence, such that it was of mid-level seriousness, including the Applicant’s actions as “show[ing] remarkable aggression and a focus on the offence he was committing”.
12 August 2020 conviction (conviction on appeal to the District Court 8 September 2020)
On 12 August 2020, the Applicant was convicted in the Local Court of NSW of the offence of Goods in personal custody suspected being stolen (not m/v) and two counts of Supply prohibited drug >indictable & <commercial quantity and sentenced to a five month fixed-term prison sentence, and a head sentence of 12 months imprisonment with a seven month non-parole period. The Applicant made full admissions and pleaded guilty to the offences.
On 8 September 2020, on appeal to the District Court of NSW, the severity of the Applicant’s sentence was varied to a five month Intensive Correction Order and a five month Supervision Order, and a term of imprisonment of 12 months, to be served by way of an Intensive Corrections Order, a 12 month Supervision Order and an order to complete 250 hours of community service.
On 25 January 2020, the Applicant was found in possession of 97 tablets or capsules of MDMA, weighing 11 grams, at 78% purity, and $1,205 in cash. A search of the Applicant’s phone also revealed several text messages in relation to past transactions. It is noted that the Applicant committed these criminal offences within two years of the end of his parole period imposed for his earlier sexual assault offence, which expired in March 2018.
The Applicant states his drug addiction was a significant factor leading to his decision to become involved in the supply of drugs. He stated he started taking MDMA in 2018, and leading up to his arrest he was taking almost 10 MDMA capsules per week. Like his 2009 offending, the Applicant admits his drug-supply offending was motivated by financial gain.
Offending between 10 and 25 January 2020
On 25 January 2020, police were conducting physical surveillance at a music festival in Sydney. At about 7:50pm, investigators observed the Applicant and two co-accused engage in conversation. One of the co-accused approached the Applicant and handed him a sum of money and in exchange, the Applicant handed the co-accused four MDMA capsules.
The investigators approached the Applicant and the co-accused. Investigators observed a small clear resealable bag containing an unknown amount of capsules believed to contain MDMA within a cap the Applicant was holding, as well as $100.00. The Applicant was placed under arrest and cautioned to which he stated he had about 90 capsules of MDMA in his possession.
The Applicant and two co-accused were escorted to the police custody area where a search of the Applicant’s ‘bumbag’ found $775 and 15 capsules believed to contain MDMA in a clear resealable bag in the front compartment. Investigators also found $330 and 24 capsules believed to contain MDMA in a clear resealable bag in the rear compartment of the ‘bumbag’. The small clear resealable bag containing an unknown amount of capsules believed to be MDMA from the Applicant’s cap was found to contain 58 capsules.
Investigators conducted an analysis of the Applicant’s mobile phone and saw several messages between the Applicant and customers where he is believed to have supplied capsules of MDMA at the current music festival, as well as several previous music festivals.
The Applicant was conveyed to Merrylands Police Station and participated in an electronically recorded interview. During the interview, the Applicant admitted to supplying MDMA. He stated he purchased 100 capsules of MDMA and was given an extra 20 as a bonus. The Applicant stated that he intended to sell the MDMA capsules for $25 each.
False and misleading information
When the Applicant arrived in Australia on 18 June 2019, he failed to disclose his prior criminal convictions on his incoming passenger card.
In response to the Department’s assertion that the Applicant provided false or misleading information to the Department, the Applicant explained that he was:
[T]old by prison guards that anyone who completes their sentence in a juvenile facility and is released before they are 21 years and 6 months, the offences will not appear on their criminal records. This is why I was under the impression that the offence would not be counted and didn’t need to be declared.
CONTENTIONS OF THE PARTIES
The Applicant concedes his criminal history in Australia which runs from 2009 until 2020. The Applicant concedes he has a ‘substantial criminal record’ under s 501(6)(a) of the Act. The Applicant concedes his convictions of 2010 are to be viewed ‘very seriously’. He states that he is very ashamed, regretful and remorseful for the crimes he has committed and claims he has taken full responsibility for his past offending. He stated he had faced a difficult time growing up as a young man and adjusting to life in Perth and subsequently Sydney. He contends that he was “irresponsible and entitled” at the time of his offending in 2008 and 2009 that led to his 2010 convictions for aggravated sexual assault and aggravated robbery. The applicant stated that as time passed, and he completed sex offender counselling courses, he realised “how much of a disgusting person I was”. He claimed whilst incarcerated he understood the pain and trauma he had caused his victims. He states that he ‘fully understand(s)’ why the Department would be seriously concerned with his sexual assault offending.
The applicant was released on parole in 2014. His parole ended in March 2018. The applicant claimed that year he started to take MDMA. In January 2020 he was arrested at the Summer Gathering festival for carrying and supplying the drug. The applicant blames a purported drug addiction for his decision to supply drugs. In September 2020 he was convicted of the previously discussed drug supply charges as well as charges pertaining to goods in personal custody suspected being stolen. He states that the 250 community service hours was of great assistance in his rehabilitation. The Applicant states that he takes responsibility for his drug offending and that it was harming people in the community. He claims that his life now has improved tremendously and he is fitter, healthier and in gainful employment as a qualified tiler.
The Applicant contends that his offending, which he defined in his submission to the Tribunal as the “2009 offences and the 2020 offences” has not been frequent, nor is there a trend of increasing seriousness. In relation to the cumulative effect of reoffending, the Applicant states that the “long gap” of three and a half years since his last offending does not indicate he is a habitual offender.
The Applicant concedes he has provided false information to the Department by not disclosing prior criminal offending when he failed to disclose his 2009 offences on an incoming passenger card in 2019, a situation he claims was based on a misunderstanding.
In relation to risk, the Applicant accepts that should he repeat his 2009 and 2020 offending, the risk to the Australian community would be harmful.
He submits however he is a low chance of reoffending. He claims to have insight and remorse in relation to his past offending which minimises any risk. In his submission to the Tribunal the risk is described as “insubstantial”. He submits that his extensive counselling and rehabilitation programme combined with his maturity and support of his family has minimised the risk of reoffending. The Applicant claims to have developed insight into the impact of his offending on his victims. He states his offending “is not a behaviour that I would again fall into”. The Applicant submits he has not committed any further offences since his drug supply offences that occurred in January 2020. He submits his genuine remorse and insight into his past offending behaviour is a protection against the risk of reoffending. The risk he claims is also ameliorated by a range of other factors including stable employment and relationships, his maturity as an adult; rehabilitation courses and voluntary further counselling under a Mental Health Plan after being released from detention. The Applicant adduced evidence from a forensic psychologist Dr Milic in support of his claims.
The Applicant contended that the strength, nature and duration of his ties to Australia weighed considerably in favour of setting aside the cancellation due to the fact he had lived for 17 of his 30 years in Australia.
The Applicant also drew attention to the impact cancellation would have upon his family members including his 20-year old Australian citizen younger brother who is currently studying at university; and his Australian citizen mother, who he states has struggled since her divorce from his stepfather in 2019. He states she has struggled in employment and in financially supporting the family, hardship that would increase considerably if he was no longer able to financially support his mother through his employment as a tiler in Australia. The Applicant furthermore claims cancellation will cause emotional hardship to his partner who is a South Korean citizen in Australia currently holding a temporary Student visa. The Applicant’s relationships with friends and employment colleagues were also submitted as relevant to this primary consideration.
The Applicant conceded that that expectations of the Australian community weighed in favour of cancellation due to his criminal conduct. The Applicant stated the weight however was tempered and minimal in circumstances like the Applicant’s, where he was a minor at the time of his convictions and the risk of any further offending conduct was minimal.
In relation to other considerations, the Applicant submitted that he faced a range of impediments if returning to Korea. These impediments included his fear he would not be able to support himself financially, emotionally and mentally. He stated he had no idea as to how he could establish himself to live in Korea again and he had no Korean ‘Social Number’ that was needed to access basic services. He claimed he did not know how he could seek gainful employment in Korea, whilst he had no family and friends to support him there. The Applicant claimed he would be looked down as a non-higher education qualified individual as an outcast and a pariah in society. He claimed language challenges and a lack of knowledges of a diverse array of matters including Korean cultural norms and how the health system worked. The Applicant stated the cost of his mother and brother visiting him in Korea was prohibitive. The Applicant submits that this consideration weighs heavily against the cancellation of his visa.
The Applicant’s other contention in relation to other considerations pertained to Australian business interests. He stated his skills as both a chef and a tiler were in high demand in Australia, and were highly valued by his employers.
The Applicant submitted that the adverse primary considerations were outweighed by the countervailing positive primary and other considerations, and the cancellation should be subsequently revoked.
The Respondent refers to the nature and seriousness of the Applicant’s offending and conduct, as well as the risk in the Applicant committing further offences or engages in serious conduct. The Respondent contends that the Applicant’s offending is extremely serious and weighs very heavily in favour of the Tribunal exercising the discretion to cancel the Applicant’s visa.
The Respondent contends the Applicant’s offending is extremely serious, stating its view is supported by paragraph 8.1.1(1)(a)(i) and (ii) of Direction 99 that states violent and/or sexual crimes, and crimes of a violent nature against women (most relevantly), are viewed very seriously by the Australian Government and the Australian community. The Respondent furthermore noted paragraph 8.1.1(1)(c) which requires the Tribunal to have regard to sentences imposed, which in the Applicant’s case included three significant terms of imprisonment in a juvenile detention centre. The Respondent contends that notwithstanding these lengthy terms of imprisonment, the Direction states that offending that involves crimes of a violent nature against women are viewed very seriously regardless of any sentence imposed by the Courts: paragraph 8.1.1(1)(a)(ii).
In relation to risk to the community, and the nature of any harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, the Respondent contends that the Applicant’s offending of 2008 and 2009 was of a violent and sexual nature, is extremely serious, and any likelihood such conduct may be repeated is unacceptable. In relation to the Applicant’s drug dealing and offending of 2020, the Respondent contends that the risk of any reoffending is similarly unacceptable. The Respondent contends that the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve significant physical, financial and psychological harm to members of the Australian community.
In relation to risk to the community, and the likelihood of reoffending, the Respondent has contended there is a real risk of the Applicant engaging in further criminal or other serious conduct for a wide range of reasons and factors. The Respondent contends these include the failure of the Applicant to abstain from offending in 2020, despite his previous incarceration and his access to extensive rehabilitation whilst in juvenile detention and on parole between 2009 and 2018.
The Respondent furthermore contends there is a real risk of further criminal or other serious conduct as it submits there is little evidence the rehabilitation undertaken by the Applicant has achieved positive outcomes; and much of the rehabilitation occurred prior to his most recent offending. The Respondent contends that the Applicant’s evidence that he began taking MDMA in 2018 coincided with him being released from his parole conditions, suggesting his ability to abstain from drug use whilst not under supervision was questionable. The Respondent has also contended the Applicant’s expressions of remorse are recent and he has a history of minimising his behaviour with more of a focus on self-pity and his family than his victims. The Respondent has also noted that the most recent Sentencing Assessment Report of the Applicant in August 2020 assessed the Applicant as a Medium risk of reoffending. The Respondent contends that the support of family and friends, whom the Applicant contends will support him, did not prevent previous offending. Finally, the Respondent contended that financial gain was a contributing motivating factor in all his past offending, and the Applicant has not resolved his financial situation and remains reliant on his mother.
The Respondent contends that these reasons are all suggestive that a real risk of the Applicant reoffending remains. Subsequently, the Respondent contends that the protection of the Australian community weighs heavily in favour of the Tribunal exercising the discretion to cancel the visa.
The Respondent concedes that the Paragraph 8.3 Strength, Nature and Duration of Ties to the Australia weighs in the Applicant’s favour given the length of his residency in Australia and his family links to his Australian citizen mother and brother. Lesser weight is given to the relationship with his girlfriend given she has no right to remain in Australia permanently and is on a Student visa due to expire in less than a year. The Respondent contends that overall lesser weight should be given to this primary consideration given the Applicant engaged in extremely serious offending within three years of his arrival in Australia, reoffended and there is limited independent evidence of the Applicant contributing positively to the Australian community.
The Respondent contends that the Tribunal should place significant weight in favour of exercising the discretion to cancel the Applicant’s visa in relation to the expectations of the Australian community. This is because of the nature of the Applicant’s offending, his subsequent reoffending after being afforded a second chance, and the potential harm that would be caused by further reoffending.

In relation to Other Considerations, the Respondent has conceded that there are some impediments to the Applicant if he is removed, but any weight in the Applicant’s favour does not outweigh the primary considerations that weigh heavily in favour of exercising the discretion to cancel the Applicant’s visa. The Respondent contends that the difficulties the Applicant may face in re-establishing himself in Korea will not make resettlement insurmountable. The Respondent contends this is because the Applicant does in fact have a stepfather, grandmother and cousin in Korea; he has stated previously that he has at least one friend in Korea; there is no satisfactory evidence to suggest the Applicant would be unable to apply for and obtain a Korean “Social Number” for his banking, health and education needs; and there is no evidence to suggest his mother could not continue to financially support him from overseas.
The Respondent also contends that the Applicant’s significant transferable employment experience in tiling, hospitality and retail; his youthful age of 30 years; his ability speak Korean and his lack of any diagnosis of any medical or psychological conditions all suggested the Applicant would be able to reintegrate into the Korean community.
In summary, the Respondent contends that the factors weighing in favour of cancellation of the Applicant’s visa heavily outweigh the factors against.
The critical issues in dispute between the parties are how the Tribunal should assess the primary considerations of the protection of the Australian community; the strength, nature and duration of ties to Australia; and the expectations of the Australian community; along with other considerations, most principally the extent of any impediments to the Applicant if removed.
The Tribunal’s considerations are set out below with regard to the Direction.
EXERCISE OF DSCRETION – CONSIDERATION OF DIRECTON 99
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens. However, this privilege is conferred in the expectation that non-citizens are, and have been, law abiding, that they will respect important institutions, and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Not all of the factors specified are relevant to the facts of this case: the Tribunal has focused on those matters that are most pertinent.
Subparagraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community. Subparagraph (b) identifies conduct that may be considered serious, much of which is not relevant to the conduct of the Applicant, although there is a catch-all provision referring to 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 on the decision-maker’s opinion. Subparagraph (c) directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant and sub-paragraph (d) points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. Subparagraph (e) is concerned with an examination of the cumulative effect of an Applicant’s repeated offending. Subparagraph (f) is also relevant to the present case because there is evidence that the Applicant failed to disclose prior criminal offending to the Department. Subparagraph (g) focuses on whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
The Tribunal has considered the nature and seriousness of his conduct.
Guided by paragraphs 8.1.1(1)(a)(i) to (iii) of the Direction, the Tribunal finds that the Applicant’s behaviour is to be viewed very seriously. His conduct has involved violent and sexual crimes (i); as well as crimes of a violent nature against women (ii).
The Applicant has been convicted of multiple extremely serious offences over a period of more than a decade. The details of his offending are set out previously in this decision record. These offences were extremely serious from the beginning, commencing in March 2009 and April 2009 with two random attacks on women in a public place. The first was an aggravated sexual assault over a lengthy period where the Applicant also threatened to kill the victim. The Applicant sexually degraded his victim. The sentencing Judge found that the Applicant’s offending was above the midrange of seriousness for this offence. The Tribunal notes the Applicant also committed an act of aggravated robbery during his March 2009 offending that the sentencing Judge considered was below the midrange given the small amount of money stolen. This offending was followed by further extremely serious offending just a week later when the Applicant attacked another woman, an event where the Applicant showed according to the sentencing Judge “remarkable aggression”. The Applicant assaulted the victim, again threatened to use a weapon and kill his victim, before stealing the victim’s property. The sentencing Judge found the offending to be a mid-level of seriousness. The Tribunal notes that in sentencing the Applicant for this offending the Court found that the behaviour and circumstances of the Applicant’s offending, who was 16 years of age at the time, “is akin to the offending of an adult”.
The Applicant was subsequently incarcerated in juvenile detention for four years after his sentencing in 2010. He then was on parole for four years until March 2018. Within two years of the end of his parole period, in 2020, the Applicant engaged in drug-related offending with the supply of large quantities of MDMA. The Court found that the Applicant had engaged in drug dealing on multiple occasions over an extended period of time. In sentencing at the Local Court it was noted “In other words, he had contacts. He knew what he was doing”.
The Tribunal notes that the cancellation of the Applicant’s visa is grounded in his conviction of 24 June 2010 for Aggravated sexual assault – threat to inflict ABH victim with weapon. The conviction relates to the events previously discussed of 28 March 2009. The Applicant was sentenced to a term of imprisonment of 8 years, a sentence that constitutes a substantial criminal record under s 501(7)(c). As the Applicant had a substantial criminal record he did not pass the character test under s 501(6)(a). Based upon this conviction his visa was cancelled under s 501(2).
The Respondent submits that the Applicant’s criminal history should be viewed very seriously. The Respondent notes that the Applicant has been convicted of extremely serious offences involving aggravated sexual assault and violence against women. The Respondent notes that the sentence of imprisonment imposed by the Court is indicative of the seriousness of the Applicant’s offending. The Tribunal notes subparagraph (c) of paragraph 8.1.1(1) of the Direction, which requires a decision-maker consider the imposition of a custodial term in any reasonably and correctly applied sentencing process. The Tribunal finds that the Applicant’s criminal conduct is objectively extremely serious. The Tribunal accepts the Respondent’s submission that the Applicant has demonstrated a disregard for the law, with the Applicant committing further serious offending in relation to his drug-dealing convictions in 2020 less than two years after his parole period ended imposed in relation to his earlier convictions, and in spite of the Applicant being incarcerated for four years and undertaking, by his own admission, extensive rehabilitation. The Tribunal considers the Applicant’s behaviour is demonstrative of a general contempt for the law.
The Tribunal finds that the Applicant’s history of criminal offending is extremely serious. The Applicant’s intimation and claims that he was not fully responsible for at least some of his behaviour – raising matters such as his youth, his purported treatment as a young man in schooling, his claimed experiences with racism, and his social isolation - does not diminish the objective seriousness of his offending. It has been over a lengthy period. His behaviour and offending have been extremely serious, involving aggravated sexual assault, violence, threatening behaviour that the Tribunal absolutely accepts caused significant psychological, emotional and physical harm and trauma to his victims. This behaviour has been followed, despite a significant time incarcerated and a lengthy parole period, by further serious offending through the dealing of MDMA, a dangerous drug that has caused significant harm to the community. The Applicant accepts the Respondent’s submission that the nature and seriousness of the Applicant’s offending weighs in favour of the cancellation of his visa.
The Tribunal notes paragraph 8.1.1(c) of the Direction. It is well-established that imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. A judicial sentencing officer’s deployment of a custodial sentencing option must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[3] The Tribunal acknowledges subparagraph 8.1.1(1)(c) and notes the imposition of multiple custodial sentences of significant duration – with a head term of eight years for his most serious offending - is indicative of the objective seriousness of an Applicant’s offending.
[3] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162, [20]-[22] (SM Poljak).
Relevant to paragraph 8.1.1(1)(d) and (e) of the Direction, the evidence before the Tribunal is that the Applicant has committed extremely serious offending within a very short period in March and April 2009 before he was subsequently convicted and incarcerated between 2010 and 2014. The Tribunal acknowledges there was some minor infractions involving home brew and a tattoo gun whilst incarcerated (which leads it to reject the Applicant’s contention to the delegate that the Applicant “exhibited exemplary behaviour and conduct in prison”)[4] but there was no criminal offending as such. The Applicant then was on parole after his release after four years between 2014 and March 2018, a period where there was no further offending. Within two years however of his parole ending the Applicant was convicted of a range of drug-dealing offences. The Applicant submits that there has not been a trend of increasing frequency of his offending given his offending occurred in 2009 and 2020. The Tribunal accepts this submission. The Applicant furthermore states there has not been an increase in the seriousness of his behaviour. The Tribunal accepts that this is so, noting however obviously that his offending commenced at a level it considers extremely serious. In relation to the cumulative effect of the Applicant’s offending, the Applicant submits that the gap between his most recent offending and today is indicative he is not a habitual offender. The Tribunal does not accept this to be so. The Tribunal notes that the Applicant’s offending of 2009 and subsequent offending of 2020 was punctuated by four years of incarceration and four years of supervision through parole. The Tribunal notes with concern that the Applicant commenced reoffending within a relatively short period (i.e., less than two years) after ongoing supervision ceased. The Tribunal has taken into account the cumulative effect of the Applicant’s subsequent offending of 2020 in relation to his earlier extremely serious offending.
[4] See G-Documents at G11, pp. 146
The Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. This is relevant to paragraph 8.1.1(f) of the Direction. The false or misleading information was the Applicant’s incoming passenger card of 18 June 2019 where the Applicant failed to declare his criminal record. The Applicant claimed in his submissions that he was unaware he was required to declare his criminal convictions, stating in his Statement[5] of 4 August 2023 that he was told by the prison guards that anyone who completes their sentence in a juvenile facility and released before they are 21 years and 6 months will not have their offences appear on their criminal record. He asserted he was under the impression his offending would not be counted and did not need to be declared. The Respondent disputes the Applicant’s claim he was unaware of this requirement. This was discussed at the Tribunal’s hearing:
[5] See A2 at paragraph 56 – 57
MS DONAGHY: You filled out this passenger card, correct?
APPLICANT: Yes.
MS DONAGHY: And then filling out that, you did not declare [your] criminal history, did you?
APPLICANT: Yes.
MS DONAGHY: I know in your statement at paragraph 56 you suggest that this is because you were told by prison guards that your offence would not appear on your criminal record. Is that correct?
APPLICANT: Yes.
MS DONAGHY: But we’ve already established that you were aware that you had – that your convictions showed up on your criminal record. That’s correct, is it?
APPLICANT: Sorry?
MS DONAGHY: We’ve already established that you were aware?
APPLICANT: Yes.
MS DONAGHY: you had convictions against your criminal record, correct?
APPLICANT: Yes.
MS DONAGHY: so that’s actually not entirely correct, because you would’ve known that the prison guards were misinformed?   So they – yes.
…
MS DONAGHY: You were aware that you had convictions on your criminal record, yes?
APPLICANT: Yes.
The Tribunal does not accept the Applicant’s claim he was under an honest misapprehension as to the requirement to declare his criminal history on his incoming passenger card. The Tribunal considers the Applicant had been informed of the requirement, and simply decided to ignore the requirement, demonstrating a general disregard and contempt for the law.
Guided by paragraph 8.1.1(1)(g) of the Direction, the Tribunal notes that the Applicant has reoffended since his original convictions in 2010. There is no evidence however before the Tribunal that the Applicant was formally warned by the Department of Home Affairs, or otherwise put the Applicant on notice, in writing, about the consequences of further offending in terms of his migration status.
The Tribunal accepts that the Applicant has not engaged in criminal offending or other adverse conduct outside Australia (paragraph 8.1.1(h)).
The Tribunal has sought to apply each of the relevant subparagraphs in paragraph 8.1.1(1) of the Direction. On the basis of the evidence before it, and for the stated reasons, the Tribunal finds the Applicant’s criminal offending to be extremely serious in nature and this weighs very heavily in favour of the cancellation of the Applicant’s visa.
Risk to the Australian community should the Applicant commit further offences or engage in serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)     the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)     the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
c)     where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Tribunal’s task is to assess the nature of the harm to individuals or the Australian community in the event of this applicant engaging in further criminal or other serious conduct. To make such an assessment requires the Tribunal to consider what harm would be caused to individuals or the Australian community if the Applicant were to reoffend and return to criminal conduct. The Tribunal has subsequently considered what harm would be caused if the Applicant returned to offending via the resumption of criminal behaviour that includes Aggravated sexual assault – threat to inflict Actual Bodily Harm on victim with weapon- SI; Aggravated robbery and use corporal violence – SI; Aggravated robbery- SI; Goods in personal custody suspected being stolen (not motor vehicle); and supply prohibited drug. >indictable & <commercial quantity – T1. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it could be repeated is unacceptable.
The Tribunal has considered the nature of any harm, should the Applicant reoffend in accordance with paragraph 8.1.2(2)(a) and engage in further criminal or other serious conduct. The Tribunal, having noted the Applicant’s offending to be extremely serious, considers that the nature of any harm, should he again engage in further criminal or other serious conduct of a similar nature, would be very grave and significant. The Tribunal considers there would be extremely serious harm to both individuals and the community, including women. The Tribunal notes the concerning random nature of the Applicant’s 2009 offending. The Tribunal particularly considers the aggravated sexual assault offending, with the accompanying threats to inflict Actual Bodily Harm and indeed kill the victim are extremely serious and would cause extremely serious emotional, psychological and/or physical damage to the victims should the Applicant reoffend. The Applicant’s aggravated robbery, in particular his second offending would cause similar fear and psychological damage and hurt to victims should he reoffend. The Applicant’s 2020 offending involving the dealing of MDMA to multiple members of the community over a period of time would also cause harm to members of the community should the Applicant reoffend. MDMA is a dangerous and corrosive drug that has been responsible for the deaths of multiple young Australians. Any resumption of the sale by the Applicant of this loathsome product to multiple members of the community will potentially have a very serious impact upon vulnerable members of the community, particularly young Australians who may indulge in this dangerous drug.

[2023] AATA 3025

22 September 2023

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