Trego and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 1202

Trego and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 1202 (15 May 2023)
Division:GENERAL DIVISION
File Number: 2023/1230
Re:Papamama Junior Trego

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Brigadier AG Warner, AM LVO (Retd), Member
Date:15 May 2023
Place:Perth

The decision of the delegate of the Respondent made on 17 February 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
......................[Sgd]............................................
Brigadier AG Warner, AM LVO (Retd), Member
CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse not to revoke mandatory cancellation of visa – character test – Direction 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 minor children – expectations of the Australian community – extent of impediments if removed – Applicant is a 38 year old man who arrived in Australia as a 3 year old – reviewable decision affirmed
LEGISLATION
Crimes Act 1914 (Cth) s 85ZR
Migration Act 1958 (Cth) ss 189, 197C, 499, 499(1), 499(2A), 500(1)(ba), 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Penalties and Sentences Act 1992 (Qld) s 12(3)
Youth Justice Act 1992 (Qld) s 184
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CFVG and Minister for Immigration and Border Protection [2017] AATA 1395
Davis and Minister for Immigration and Border Protection [2017] AATA 1106
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Jabari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1492
James and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2390
Pavey and Minister for Home Affairs [2019] AATA 4198
SCJD and Minister for Home Affairs [2018] AATA 4020
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
Varley v Minister for Home Affairs [2019] AATA 376
SECONDARY MATERIALS
Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce, 2015
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 Immigration, 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 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(3), 5.2(4), 6, 7, 7(2), 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 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(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Brigadier AG Warner, AM LVO (Retd), Member
15 May 2023
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 20 February 2023 not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
The Applicant’s visa was cancelled on 31 August 2021 pursuant to s 501(3A) of the Migration Act (the Cancellation Decision).
The application is made pursuant to s 500(1)(ba) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, and the Tribunal has jurisdiction to review the decision.
BACKGROUND
The Applicant is a 38-year-old citizen of New Zealand. He first arrived in Australia with his family when he was three years old. Since that time, the Applicant has not departed Australia (G29/148; FS2/3).
On 18 June 2015, the Applicant's visa was cancelled under s 501(3A) of the Migration Act. The Applicant made representations to have the cancellation revoked under s 501CA of the Migration Act. On 27 April 2016, a delegate of the Minister decided to revoke the decision to cancel the Applicant's visa (G27/145). The notice of the delegate’s decision included the following warning:
Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.
(Original emphasis.)
On the same day, the Applicant signed and dated the attachment labelled as “Attachment K.1” to the notice of the delegate’s decision, acknowledging receipt of the notice and his understanding that (G28/147): “…I can again be considered for cancellation of any visa that I hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be considered”.
On 5 August 2021, the Applicant was convicted of “Possession Of A Prohibited Drug With Intent To Sell Or Supply (Methamphetamine)” for which he was sentenced to a term of two years and four months imprisonment (G16/81).
On 31 August 2021, the Applicant's visa was cancelled again under s 501(3A) of the Migration Act (G31/151). This was because the Applicant had a “substantial criminal record” on the basis of having been sentenced to a term of imprisonment of 12 months or more: paragraphs 501(6)(a) and 501(7)(c) of the Migration Act.
The Applicant was released on parole on 24 September 2022 (FS6/24) and since then has been detained at the Yongah Hill Immigration Detention Centre.
On 27 September 2021, the Applicant made representations to have the cancellation of his visa revoked under s 501CA of the Migration Act (G17/82). On 17 February 2023, a delegate of the Minister found that the power under s 501CA(4) of the Migration Act to revoke the cancellation of the Applicant’s visa was not enlivened (G4/17), and the Applicant was notified of that decision by letter dated 20 February 2023 (G3a/10-12).
On 28 February 2023, the Applicant applied to the Tribunal for review of that decision (G2/4). In his application the Applicant claims the delegate’s decision is wrong because (G2/8):
The Decision made on the 21st of February 2023 by the delegate of the minister is unreasonable and natural justice has been denied. The correct and preferred decision would be to set aside the review and revoke the mandatory cancellation.
ISSUES
The issues before the Tribunal are whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is “another reason” why the Cancellation Decision should be revoked (see s 501CA of the Migration Act).
THE HEARING AND THE EVIDENCE
The Application was heard on 20 April 2023 and 28 April 2023. On 20 April 2023, the Applicant appeared in person and was self-represented. The Respondent was represented by Mr Liam Dennis of Minter Ellison Lawyers who appeared by Ms Teams video. On 28 April 2023 the parties appeared by Ms Teams.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.
The Tribunal also took evidence from the Applicant’s mother, sister and brother who appeared in person. The Applicant’s mother and sister were cross-examined.
The following documents were marked as exhibits:
(a)Bundle of Smart Recovery documents (nine pages) filed 20 April 2023 (Exhibit A1);
(b)Section 501 “G Documents” (G1-G36, pp 1-208) (Exhibit R1);
(c)Supplementary “G Documents” (S1-S40, pp 1-303) (Exhibit R2);
(d)Further Supplementary “G Documents” (FS1-FS17, pp 1-36) (Exhibit R3);
(e)Further Supplementary “G Documents” (FS18-FS25, pp 37-92) (Exhibit R4); and
(f)Respondent’s Statement of Facts, Issues and Contentions dated 29 March 2023 (Exhibit R5).
LEGISLATIVE FRAMEWORK
Under the Migration Act the Minister has powers to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly 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.)
A “substantial criminal record” is relevantly defined by s 501(7)(c) 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; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months. Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision (Migration Act s 501CA(3). If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is “another reason” why the original decision should be revoked; HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 at [66].
Direction 99
The Tribunal is required to form a state of satisfaction as to whether there is “another reason” why the original decision should be revoked, reasonably and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those power which are given by the Minister pursuant to s 499(1) of the Migration Act.
On 23 January 2023, the Minister made Direction No 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021).
The previous Direction 90 was in force at the time the Non-Revocation Decision was made on 17 February 2023. At a directions hearing on 9 March 2023, the Tribunal alerted the parties to the fact that a new direction had been issued and that it would be required to apply Direction 99 in conducting its review. A copy of Direction 99 was provided to the Applicant by the Tribunal on 9 March 2023.
An objective of Direction 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act. In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction 99 where relevant to the decision (Direction 99 para 6).
Paragraph 5.1 of Direction 99 sets out “[o]bjectives” including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 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) (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.
The Tribunal notes that there is no para 8.55(2) in Direction 99 and assumes that the reference in para 5.2(6) above is a reference to para 8.5(2).
Direction 99 para 4(1) includes the Tribunal as a decision-maker bound by its principles. Informed by the principles set out in Direction 99 para 5.2, 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”.
In making a decision under s 501CA(4) of the Migration Act, the “primary considerations” to be taken into account by the Tribunal are (Direction 99 para 8):
(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.
The “other considerations” that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to) (Direction 99 para 9):
a)    legal consequences of the decision;
b)    extent of impediments if removed;
c)    impact on victims;
d)    impact on Australian business interests.
Direction 99 para 7 provides further guidance as to how a decision-maker is to apply the considerations, as follows:
(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.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record”, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more”.
The Tribunal finds that on 5 August 2021, the Applicant was convicted of the offence of “Possession of a Prohibited Drug With Intent to Sell or Supply (Methamphetamine)” in the District Court of Western Australia for which he was sentenced to a term of two years and four months imprisonment (S14/49). As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.

The Applicant accepts that he does not pass the character test (FS2/3).
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations prescribed in Direction 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
The Applicant submitted, in summary that (FS2/9):
(a)He has lived in Australia for 35 years and spent his formative years here.
(b)He is extremely remorseful for his offending, has shown good rehabilitation prospects and plans to remain free of any addiction.
(c)He has made steps to address his mental health issue which led to his offending.
(d)He has contributed to Australia and has very strong ties to Australia, including very strong family ties.
(e)Remaining in Australia is in the best interests of his five children.
(f)He wholeheartedly apologises for his criminal convictions and unacceptable behaviour and is seeking support and help to address his issues so that he can become a positive contributing member of the Australian community.
(g)He knows that it is a privilege to live in Australia and not a right.
The Respondent submitted, in summary that (Exhibit R5, para 2-3):
The applicant’s offending includes drug, dishonesty, violent, property and traffic offences. The Minister contends that the protection of the Australian community and the expectations of the Australian community weigh heavily against revocation. The Minister concedes that the countervailing considerations of the best interests of minor children, the applicant’s ties to Australia and impediments if removed should not be given overwhelming weight.
Overall, the Minister contends that the Tribunal should not be satisfied that there is another reason why the decision to cancel the applicant’s visa should be revoked and, therefore it should affirm the decision under review.
CONSIDERATION
PRIMARY CONSIERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1) … should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , 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 conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In his written statement filed on 13 April 2023 (FS2/4), the Applicant acknowledges the seriousness of his offending and that it has had a major impact on his family and the Australian community.
A summary of the Applicant’s offences is at Annexure A.
The Respondent contends that the Applicant has an extensive criminal history from 2001-2021 involving drug, dishonesty, violent, property and traffic offences, and that the nature and seriousness of the Applicant's offending weighs heavily against revocation (Exhibit R5, para 22). The Applicant’s offending history is detailed in Exhibit R5 at [21] as follows:
(a)On 11 November 2001, while a juvenile, the applicant was convicted of AOBH (assault occasioning bodily harm) whilst in company. The applicant failed to appear at the … Magistrates Court and a warrant was issued.
(b)On 26 December 2001, while a juvenile, the applicant was convicted of PPRA (Police Powers and Responsibilities Act) contravene direction or requirement and PPRA obstruct police officer.
(c)On 16 July 2003, the applicant was convicted of burglary and commit offence agg (habitat) and sentenced to a Community Release Order (adult) for six months with an $800 undertaking. This offence involved the applicant stealing a key to enter the victims house and stealing a digital camera, mobile phone and alcohol which were later sold (G10, 62).
(d)On 10 November 2003, the applicant was convicted of assault occasioning bodily harm and sentenced to imprisonment of six months suspended for 18 months; and, on the same date, the applicant was convicted of assault public officer and fined $300. These offences involved the applicant striking a police officer in the head with his right fist from behind without provocation causing the police officer to fall to the ground; and slapping another police officer to the right side of his face (G9, 59).
(e)In 2007, 2008, 2013, 2019 and 2021, the applicant had a number of traffic related convictions resulting in fines and disqualifications.
(f)On 27 June 2014, the applicant was convicted of 14 counts of gains benefit by fraud and sentenced to two years and eight months imprisonment. The sentencing judge noted that these offences were committed against 14 individuals and that the 'amounts that you defrauded from each of these persons ranged from $635 to $20,600' (G8, 46). The sentencing judge noted the seriousness of these offences stating that 'the seriousness of the offence of which you have been convicted is such that only imprisonment can be justified or the protection of the community requires a sentence of imprisonment' (G8, 54). The sentencing judge also recounted the substance of several victim impact statements demonstrating the human cost of the applicant's fraud (G8, 46–48).
(g)On 13 January 2020, the applicant was convicted of stealing and fined $5000.
(h)On 5 August 2021, the applicant was convicted of possession of a prohibited drug with Intent to sell or supply (methylamphetamine) and sentenced to two years and four months imprisonment. The sentencing judge set out the facts of these offences (G7, 37). In summary, the applicant was in a car in the driver’s seat asleep, or passed out. The engine began to rev, while the car remained in neutral. Emergency services were called and the police found a backpack containing 9.52 grams of methamphetamine in three clip seal bags (containing 3.5 grams at 79% purity, 3.35 grams at 78% purity and 2.67 grams at 77% purity); a bag of 3.35 grams of dimethylsulfone, which is a common cutting agent; two sets of scales with calibration weights; two glass pipes; a straw shovel; and 1.78 grams of cannabis.
The sentencing judge noted the seriousness of the applicant's offending stating that '[the] seriousness of the offending in this case is such that only an immediate term of imprisonment is justified' (G7, 42).
(i)On 27 August 2021, the applicant was convicted of the following further offences:
(i)     No authority to drive (disqualified 3 months);
(ii)    Gains benefit by fraud (imprisonment 3 months);
(iii)   Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis) – (imprisonment 3 months concurrent); and
(iv)   Possessed drug paraphernalia in or on which there was a prohibited drug or plant ($600 fine).
(Original emphasis.)
The Tribunal notes the Respondent’s submissions regarding the Applicant’s offences as a juvenile (Exhibit R5, para 23), whereby the Minister acknowledges that:
…some of the applicant’s offences were committed while he was a minor, namely the offences which were committed on 6 November 2001 and 25 December 2001. This gives rise to the question of whether the decision of the Full Federal Court of Australia in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (Thornton) places any limitation on the Tribunal’s ability to have regard to, and give weight to, the fact of the applicant’s offending which did not result in a conviction or finding of guilt. On this issue the Minister submits that:
(a)Thornton was wrongly decided and is the subject of an appeal in the High Court of Australia, which is yet to be determined.
(b)Although Thornton still binds the Tribunal, it is only binding insofar as it stands for the proposition that s 184 of the Youth Justice Act 1992 (Qld) and s 12(3) of the Penalties and Sentences Act 1992 (Qld) engages s 85ZR of the Crimes Act 1914 (Cth). It does not preclude consideration of the underlying conduct where there is independent evidence of that conduct.
(c)However, in the circumstances of the present case, the Minister contends that the Tribunal may, out of an abundance of caution, disregard the applicant’s offending as a juvenile taking into consideration that this offending occurred over a decade ago and that the applicant has since amassed a serious criminal history such that any consideration of the applicant’s offending as a juvenile would not be determinative.
(Original emphasis.)
On consideration of the Respondent’s submission, the Tribunal puts aside the Applicant’s juvenile offending.
The Applicant's offences include violence against police in the performance of their duties (para 8.1.1(1)(b)(ii) of Direction 99). The Tribunal has also previously acknowledged the seriousness of fraud, drug and traffic offences: Jabari and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1492 at [84] per Member Burford (as she was then); SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83] per Senior Member Cameron; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]–[45] per Senior Member Tavoularis.
The seriousness of the Applicant's offending is reflected in the punishments imposed (para 8.1.1(1)(c) of Direction 99). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Terms of imprisonment must be viewed as a reflection of the objective seriousness of the offences involved: Davis and Minister for Immigration and Border Protection [2017] AATA 1106 at [31]; Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]. Relevant sentencing remarks are noted in paragraph [44(f)] and [44(h)] above, and the Tribunal also has regard to the Court’s comment when sentencing the Applicant on 5 August 2021 that “a term of immediate imprisonment is the only appropriate sentencing option for serious drug offences” (G7/41).
The Applicant has an extensive criminal history with various and frequent offences of increasing seriousness (paragraph 8.1.1(1)(d) of Direction 99). The Applicant’s recidivist fraud offending is evidence of the cumulative effect of his criminal behaviour. On 27 August 2021, the Applicant was convicted of two counts of “Gains Benefit by Fraud” committed on 21 November 2017 and 9 January 2018. The Applicant was sentenced for 14 fraud offences on 27 June 2014, with five of the offences committed while the Applicant was on bail for the first nine frauds (G8/46). The Tribunal also notes the WA Police report (S16/56) which suggests further fraudulent behaviour during the period 27 May 2021 to 10 July 2021 (during the hearing the Applicant confirmed that this matter has not progressed to court at this time (Transcript/26)).
Paragraph (8.1.1(1)(e)) of Direction 99 provides that the cumulative effect of repeated offending is a factor that the Tribunal must have regard to in its consideration of the seriousness of the Applicant’s criminal offending. The Applicant’s repeat offending supports a conclusion that his criminal offending is very serious, and the Tribunal agrees with the Respondent’s contention that “the cumulative effect of the applicant’s offending is unacceptable” (Exhibit R5, para 26).
There were of course victims of the Applicant’s fraud offending. The serious and extensive nature of these offences is evident in the Court’s remarks on 27 June 2014 (S7/25): “[y]ou engaged in a significant course of dishonesty which impacted adversely on the financial and emotional wellbeing of a significant number of people.”
The Applicant previously had his visa cancelled on 18 June 2015, with the cancellation being revoked subsequently (see para [5] above). Before the Tribunal, the Applicant denied (Transcript/29) receiving the revocation decision letter dated 27 April 2016 and annotated “Method of Delivery: By Hand” (G27/145-146). The Applicant did however accept that he signed the acknowledgement attached to the revocation decision letter (G28/147), but said that he did so without reading it (Transcript/30).
Having regard to the gravity attached to the earlier visa cancellation and the real and potential consequences for the Applicant, the Tribunal finds the Applicant’s evidence implausible. Rather, the Tribunal finds that the Applicant had clear and plain advice of the consequences of further offending for his migration status. Having regard to the provisions of Direction 99 para 8.1.1(1)(g), the Applicant’s further offending despite this warning can only be regarded as being very serious. The Respondent contends that this continued offending “should weigh very heavily against revocation” (Exhibit R5, para 28).
Overall, and based on the consideration of the relevant provisions of para 8.1.1 of Direction 99, the Tribunal finds the nature and seriousness of the Applicant’s offending to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.
In assessing the risk that the Applicant poses to the Australian community, I am required to assess the nature of the harm that would be caused should the Applicant engage in further criminal or other serious conduct (para 8.1.2(2)(a) of Direction 99). This consideration also requires an assessment of the likelihood of re-offending (para 8.1.2(2)(b) of Direction 99). There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment (see BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41]).
The Applicant’s submissions related to his risk to the Australian community, in summary, are as follows (FS2/5-7):
(a)He has been offence free in the community from 13 January 2020, and remained so while incarcerated and detained in immigration detention.
(b)In prison he was assessed as a low risk of re-offending and was not required to undertake any programs and was released on parole 24 September 2022. If returned to the community, he will be on parole supervision orders which he must follow, or risk return to prison or detention.
(c)While in prison he attended Narcotics Anonymous classes, three sessions of individual counselling with Cyrenian House to address past childhood trauma of sexual abuse and attended four of the six classes of the Allied Drug and Alcohol Programs and Treatment (ADAPT) course before his release on parole to immigration detention.
(d)In detention he has engaged in a session with a psychiatrist and a session with a psychologist. He has undertaken a range of rehabilitation classes online, and has participated in 19 Smart Recovery Online 90 minute meetings which have helped him understand that he is not alone on his recovery journey (see Exhibit A1).

The Respondent submits that any reoffending by the Applicant would potentially expose the Australian community to significant physical, psychological and/or financial harm, and that (Exhibit R5, para 30):
The applicant has expressed remorse and a willingness to engage in rehabilitation. The applicant has engaged in a 'cognitive thinking' course and attended two counselling sessions (G5, 23–24: [46], [50]). However, in light of the applicant's criminal history and his limited engagement in relevant rehabilitation (including for drug, gambling, trauma and mental health issues), the Minister contends that the evidence points to there being a significant risk the applicant will reoffend which is unacceptable (8.1.1(2)(b)). Further, the applicant's criminal history reveals that the applicant has continued to offend despite being convicted of similar offences and warned about the consequences of further offending for his migration status. In these circumstances, the Minister contends that there is a significant risk that the applicant will reoffend which is unacceptable.
(Original emphasis.)
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
With respect to the recidivist fraud offending, the significant harm that could be caused to members of the community were the Applicant to reoffend in a similar manner is made clear in the Court’s remarks at paragraph [51] above. The Tribunal notes that the Applicant appears not to have considered the circumstances of and consequences for the victims of his offending.
In addition to the methylamphetamine conviction resulting in the Applicant’s current sentence, he has convictions for “Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis)” (S14/48) and “Driving with prescribed illicit drug” (S14/49). The Applicant claims to have remained drug free since 14 August 2018 (FS2/5).
As detailed above (see para [55]), Direction 99 para 8.1.2(1) allows that some conduct and its resultant harm, if repeated, is so serious that any risk that it might be repeated is unacceptable. Any relapse to the use of illicit substances and further drug-related offending by the Applicant should be seen as having the potential to cause a broad range of harm to the Australian community including physical harm, mental illness, violence, health issues, financial harm, loss of productivity, expenditure of medical resources and involvement with the criminal justice system. The sale and supply of prohibited drugs can also lead to loss of life and disruption to families.
The Federal Department of Prime Minister and Cabinet’s 2015 Report of the National Ice Taskforce is relevant to this consideration of harm. The Report describes the “distinct problem for society” caused by methylamphetamine (also known as “ice”) thus:
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The Applicant submits “that with the pro active rehabilitation I have done and will continue to do, my post release plans for the future, I dont see myself as being a risk/threat to the community” (FS2/7). He told the Tribunal that he had “learnt from my past mistakes…I’m addressing my underlying issues” (Transcript/35-36).
I relation to the likelihood of reoffending, the Applicant further states (G17/97):
…My major factor that I will never reoffend is that I have found real love. Something I have never had. Love from my partner … and the 3 kids is more than enough for me to stay on the right path. Wanting to marry her plays a massive part in me doing the right things from now on.
There is no direct evidence from the Applicant’s partner regarding his intention. In her now somewhat dated statement filed on 29 September 2021, she remarked (G19/114): “Although I can not say what the future holds between myself and Papamama I do believe he needs to remain in Australia as this is the home he knows and where he has the family unit of love and support for him to be the best he can be.”
The Applicant is currently on parole, and relies on a prison assessment that he is a low risk of reoffending (see para [57] above FS6/24). Such assessments are conducted for purposes quite different to the considerations of the Tribunal in the present matter and involve specific to purpose assessment tools, availability of programs, length of sentence etc. For example, parole is not granted on the basis that there is no likelihood of the parolee reoffending, rather it is granted on the basis that any risk to the safety of the community can be mitigated by regular reporting, supervision and the imposition of parole conditions. The “low risk” assessment was made in the narrow and specific context of determining suitability for parole and the Tribunal does not have recourse to conditions such as mandatory counselling, engagement in programs, urinalysis when assessing the Applicant’s risk under Direction 99 para 8.1.2(2)(b). Senior Member Dr Evans-Bonner made the Tribunal’s position clear in Varley v Minister for Home Affairs [2019] AATA 376 at [110]:
…The Tribunal cannot, however, defer to the opinion of the PRB to the extent that the Tribunal fetters its own discretion. The Tribunal must undertake its own independent consideration of the Applicant’s likelihood of reoffending, based on the merits of the Applicant’s application before the Tribunal and the submissions and evidence before the Tribunal.
In sentencing remarks on 27 June 2014, the Court told the Applicant that he was “at least at moderate risk of reoffending. So the consideration of the protection of the public does assume some relevance in your case” (G8/54). During his subsequent imprisonment, the Applicant completed the intensive “Think First” consequential thinking program. Unfortunately, participation in that intervention did not prevent the Applicant reoffending. Before the Tribunal, the Applicant indicated that his focus during the program was addressing his gambling addiction, and although he had reoffended, it had “nothing to do with my gambling charges or my gambling addiction that I had back in 2014”. Rather, the Applicant told the Tribunal that he was struggling financially and had a drug issue (Transcript/35). There is no evidence before the Tribunal of any intensive treatment such that the risk related this drug issue could be seen to be mitigated.
The Applicant contends that he will not reoffend. He testified that he is very remorseful for what he has done to the Australian community, his family and all his victims (Transcript/12). However, this remorse must be considered against the Applicant’s extensive criminal history which includes offences while on bail for similar offences, and which has continued despite community dispositions, prison, monetary penalties, and the previous cancellation of his visa.
The Respondent’s closing submissions on risk (Transcript/64) included, in summary, the following:
(a)In the pre-sentence report cited by the Court on 27 June 2014, the Applicant was assessed as a moderate risk of reoffending and did offend further after release.
(b)The Applicant has engaged in some rehabilitation since his drug offences, but considering the extent and seriousness of his offending, his efforts are limited.
(c)Commendably, this year the Applicant has undertaken further rehabilitation through online courses, but these efforts should be afforded minimum weight because they have been undertaken in the context of the present proceedings.
(d)Despite saying that he has experienced depression, the Applicant has not engaged with a psychiatrist or psychologist on a regular basis and has not been diagnosed with a mental health condition.
(e)The Applicant has more recently been assessed to be a low risk of reoffending, however this assessment was completed in the narrow and specific context of the parole process and does not take into account the Applicant’s other conduct. Even if the Tribunal were to accept that the Applicant currently presents as a low risk of reoffending, “that is a level of risk which is unacceptable having regard to the nature and extent of Mr Trego’s criminal offences”.
Having been assessed in 2014 as being at least a moderate risk of reoffending and requiring interventions for gambling addiction, self-management and cognitive thinking skills (G8/54), the Applicant completed the “Think First” program in prison. However, as the evidence shows, he went on to reoffend. The Applicant’s statements during cross examination suggested that he saw the “Think First” intervention only through the lens of his gambling addiction and his disregard of the need for further rehabilitation is of concern: “no, I didn’t think I needed to do anything after that because I’d dealt with it in prison and I’d gotten over it, gone past it” (Transcript/35).
The Tribunal accepts that, to his credit, the Applicant has engaged voluntarily in courses and interventions while in immigration detention, however there are no professional opinions or probative assessments before the Tribunal as to the efficacy of these activities or their potential to reduce the Applicant’s risk of future offending. For example, the documents at Exhibit A1 confirm that the Applicant logged into SMART Recovery meetings but do not provide details of the nature and level of engagement or any treatment gains.
Having considered all evidence regarding the Applicant’s circumstances, the Tribunal considers the Applicant’s overall likelihood of reoffending to be moderate. Should the Applicant engage in offending consistent with his previous offending, there would be a risk of significant harm to the Australian community. Given the adverse impacts of the Applicant’s fraud offences on individuals and the impact of drug trafficking on the community (para above [62] refers), the Tribunal considers that even a low risk of reoffending is unacceptable.
Tribunal’s conclusion - protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this first primary consideration weighs very strongly against revocation of the Cancellation Decision.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
In the non-revocation decision, the delegate found no information that the Applicant had engaged in family violence as defined in Direction 90 (G5/25). In the present matter, the Respondent states that “[t]here is no evidence that the applicant has engaged in family violence…” (Exhibit R5, para 31). In the absence of any information to the contrary, the Tribunal agrees and assigns this primary consideration neutral weight.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)     Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)    more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)   less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Relative to this third primary consideration, the Respondent contends (Exhibit R5, para 33):
The Minister accepts that the applicant appears to have significant ties to Australia. The applicant has a number of immediate family members in Australia (G5, 29: [88]). The applicant's current partner and her two children are also in Australia. The applicant has been in Australia since he was three years old and he has contributed to the community through employment, sport, church and culture. The Minister accepts that this factor weighs in favour of revocation. However, the Minister contends that this factor should not be given significant or overwhelming weight.
(Original emphasis.)
The Tribunal notes with regard to this contention that the Applicant’s partner has three children in Australia, rather than two. Two of these children are minors (LS and LN) and their interests are discussed in the context of the fourth primary consideration below. The Tribunal has before it and takes into account a supportive letter from the third child, the Applicant’s adult stepdaughter (G20/115).
In his written statement filed on 13 April 2023 (FS2/7-8), the Applicant states:
41.I express much concern that if I was to be removed from Australia it will have a powerful impact on my immediate family emotionally and mentally.
42.My partner and 3 children will be majorly impacted if im [sic] removed.
43.My ties to the community have been strong through cultural events, sporting events, church gathers and working.
44.Ive [sic] represented QLD and WA in many sporting events at high levels. Ive [sic] represented Australia in rugby in my school boys day,Ive [sic] volunteered time at fishing clubs, friends landscaping business, sausage sizzles, park fundraisers as well as coaching and laying sports in our community.
45.My ties to Australia are significant. I have been here 35 years, never left the country and Ive [sic] never owned or even applied for a New Zealand passport. I class myself 100% Australian.
46.I spent all my formate [sic] years in Australia, I graduated high school here and Ive [sic] worked here and paid my taxes and contributed to my superannuation.
47.My daughter J will suffer from my removal. Despite passed years of minimal contact, our contact and relationship now is very strong.
48.All my friends and families are either Australia citizens or a permanent residentvof Australia.
49.My father passed away here and is buried here.
50.My 25 plus nieces and nephews of my siblings will suffer some impact if there [sic] uncle is removed thats not including the other 100 plus nieces and nephews I have here in Perth.
It is evident from the material before the Tribunal, and the oral evidence from the Applicant’s mother, brother and sister, that the Applicant’s ties to Australia are strong and long-standing. The Applicant has been in Australia since the age of three years and is part of a very large family network (G18/107-110). The evidence is that he has contributed to the Australian community through sport, employment, community activities and participation in cultural events of the Cook Islands local community (G17/99). Many family members will be impacted adversely if his application fails, including his partner who will not have him with her to assist in raising her children (the Applicant’s stepchildren).
There is no evidence of any impact on Australian businesses if the Applicant is not allowed to stay in Australia.
The Tribunal considers that this third primary consideration weighs in favour of revocation of the Cancellation Decision. In proceeding to determine the relative weight to be assigned this consideration, the Tribunal must have regard to Direction 99 para 8.3(4)(a). This paragraph notes that considerable weight should be given to residence in Australia during and since formative years regardless of the time of commencement and level of offending, and that more weight should be given to the time when the non-citizen has contributed positively to the Australian community.
The Applicant has been in Australia from a very young age, but has spent periods in prison and immigration detention. In the course of the Tribunal’s determination of the weight to be given this primary consideration, a number of other factors deserve examination.
In his Personal Circumstances Form (G18/105), the Applicant attests to his development and employment as a leader during a 16 year career, stating that: “I’ve been a foreman, leading hand and supervisor for half my working life” (G18/105). In these circumstances, the Applicant defrauded 14 victims who were seeking his assistance with employment training, or access to qualifications in amounts ranging from $635 to more than $20,000 (S4/8-14). In the Tribunal’s view, this offending by someone in position of influence and authority diminishes the value of the Applicant’s ties to the community with respect to employment, and the Tribunal notes that pursuant to Direction 99 para 8.5(2)(f), worker exploitation is a kind of offence giving rise to the community expectation that the offender should not hold a visa.
Further, the sentencing remarks of Derrick J (G8/46-47) clearly indicate the vulnerability of some of the Applicant’s victims as a consequence of his frauds (Direction 99 para 8.5(2)(c)).
In sentencing the Applicant on 27 June 2014 on the fraud charges, the Court remarked that after being charged with the first nine offences, the Applicant received threats and recruited an outlaw motorcycle gang member to stop them. The Court remarked that the Applicant then paid the gang member the amounts of $2,500 to $4,000 per week between August 2013 and February 2014, and then committed the last five fraud offences to pay off his debt to the “bikie member” (S7/23-25). The Applicant’s engagement with an outlaw motorcycle gang also casts a shadow over his prosocial ties to the community.
On 13 January 2020, the Applicant was convicted of stealing from the rugby club he belonged to and was fined $5,000 (S29/87). The Applicant told the Tribunal that he took responsibility for the offence to protect his sister whose dishonesty was known by “our whole family” (Transcript/46). The Respondent, correctly in the Tribunal’s opinion, contends that the Tribunal cannot go behind the conviction and should find this conviction to be a further example of dishonest conduct by the Applicant (Transcript/63). Should the Applicant’s explanation be true, it would appear to undermine to some extent the family support network he relies on, and would demonstrate a disregard for the Court and the rule of law by the Applicant.
In sentencing the Applicant on 5 August 2021 on the count of “Possession of a Prohibited Drug With Intent to Sell or Supply (Methamphetamine)” the Court mentioned the involvement of other family members (S13/46):
Now, it seems that you were with your cousin and brother, from the pre-sentence report. You’d been with them the night before. You’d been using methamphetamine excessively and had been awake for a long period of time, and that’s why you fell asleep with the car revving on that particular day.
In response to questions by the Tribunal, the Applicant confirmed that these family members had been with him, but were not in the car when he passed out (Transcript/47). The circumstances of this serious offence further detract from the weight that might accrue to the Applicant’s family ties.
Tribunal’s conclusion – strength, nature and duration of ties to Australia

Overall, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revocation of the Cancellation Decision.
Fourth primary consideration: The best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Paragraph 8.4(1) of Direction 99 requires the Tribunal to make a determination whether refusal or non-revocation is in the best interests of minor children in Australia affected by the decision. This primary consideration only applies with respect to children under 18 years old at the expected time of the decision to not revoke the Cancellation Decision (Direction 99 para 8.4(2)).
The Applicant has identified the following minor children in Australia affected by the decision (G17/92):
(a)Applicant’s biological daughter J, who will turn 18 years old within weeks of this decision;
(b)Applicant’s stepson LS, aged 15;
(c)Applicant’s stepson LN, aged eight; and
(d)some 20 nieces and nephews considered “immediate children” (G18/109).
In relation to these minor children, the Respondent submits as follows (Exhibit R5):
36.The Minister accepts that this consideration weighs in favour of revocation. However, the Minister contends that the weight given to this consideration should be moderated given that it appears that the applicant is not in contact with his daughter who will be 18 in … 2023 (8.4(4)(a)). Further, while the applicant's relationship with his step-children appears strong, their mother already fulfills a parenting role (8.4(4)(e)).
37.The applicant has also identified several nieces and nephews as minor children affected by the decision (G18, 109). The applicant does not perform a parenting role for his nieces and nephews and describes himself as a 'class clown uncle' (G17, 95) (8.4(4)(a)). In these circumstances, the Minister contends that this consideration should only be given limited weight with respect to the applicant's nieces and nephews.
38.Further, the applicant could stay in contact with all of these children in other ways and his offences could have a negative impact on them (8.3(4)(a)–(d)).
(Original emphasis.)
Applicant’s daughter J
The Applicant submits that despite years of minimal contact with his daughter, their relationship is now very strong. In his written statement, the Applicant submits (FS2/8):
In past years our relationship and communication was not all that great due to her mother and I going our separate ways. Despite the past our relationship now has grown really strong.We video/phone on a regular basis we express our feeling to eachother and I can say Im [sic] very proud of who she is today. I will always love and support J in everything she does. J’s mother was recently diagnosed with Renal Cell Carcinoma and is currently awaiting surgery [in 2023]. J’s brother my step son was diagnosed at a young age of C.M.L (Chronic Myeloid Leukemia). Knowing this is happening in her life I know that I can support her emotional to get her through any negative senarios [sic] she faces.Being removed from Australia will criple [sic] any hope for her to have her father back full-time.
There are no submissions from the Applicant’s daughter J or her mother regarding J’s views about what would be in her best interests.
In her letter dated 14 April 2023, the Applicant’s mother stated (FS14/33): “[h]is daughter’s mother would always make excuses as to why he can’t see her, but he would always make sure he was there watching her play netball each Saturday…”
In oral evidence, the Applicant’s sister expressed her love for the Applicant’s daughter. She confirmed that the Applicant and his daughter would be welcome in her home thus assisting in building family relationships (Transcript/56).
The Tribunal notes that the Applicant’s influence on the best interests of his daughter as a minor must be minimal because of her imminent birthday (para [91] above refers) and his current immigration detention. Nonetheless, the Tribunal accepts that the role of a father is pivotal in a child’s life and therefore, despite these circumstances, the Tribunal gives the best interest of J some weight in favour of revocation of the Cancellation Decision.
Applicant’s stepchildren LS and LN
In his written statement, the Applicant submits (FS2/8):
LS and LN – As mention before these two are my sons. Our relationship is strong as I am the father figure in their life. I have and will always protect, provided unconditional love and support to them.We have video/phone calls daily in the mornings and night.These two as well as there [sic] sister and mother have recently suffered tramatic [sic] trauma of the news the children’s father is currently in prison awaiting chargers [sic] of murder. His actions have caused a backlash of threats for revenge to [their mother] and the kids that they have been living with her sister for the last month. I carnt [sic] imagine how the children are feeling about loosing a parent to life behind bars but it carnt [sic] be good for there [sic] mental state. Being removed from Australia will impact them even more.
The Applicant further states that his removal from Australia would leave a major void in his stepchildren’s lives, and they would not cope as they are close and attached to each other (G17/93).
The Applicant and the stepchildren’s mother have been in a relationship since early 2018 (G18/107). In a statement filed on 29 September 2021 (G19/114), the Applicant’s partner submits that the boys have come to love the Applicant and will suffer a huge impact if he is removed. In a statement filed that same date (G20/116), the Applicant’s stepdaughter and older sister (not a minor) of his stepsons LS and LN submits that “our family wouldn’t feel complete without him, and my brothers and I would cry for Pa especially my youngest brother LN”.
Neither the stepchildren LS and LN nor their mother attended the hearing, and the Tribunal has no submissions from the Applicant’s partner beyond the statement (G19) made more than 18 months ago and cited in the preceding paragraph.
There is no direct evidence before the Tribunal as to the views of these children about their best interests. There is little evidence that the best interests of these two stepchildren should receive individual consideration pursuant to Direction 99 para 8.4(3). In addition to the stepdaughter’s comment in the preceding paragraph, the Applicant submitted in the Personal Circumstances Form that his stepdaughter and younger stepson “will struggle the worst as our bond is very very strong” (G17/93), and that his younger stepson gets to play with all the Applicant’s nieces and nephews (G17/95).
The Applicant’s partner fulfils a parental role with these children and will continue to do so. There is no evidence that these stepchildren have been subject or exposed to family violence, abuse or neglect perpetrated by the Applicant.
Paragraph 8.4(4)(c) of Direction 99 requires the consideration of whether the Applicant’s prior conduct and any likely future conduct will have a negative impact on the child. The offences for which the Applicant is currently on parole were committed on 14 August 2018 (S9/34), some eight months after he commenced residing with his partner and her children. At that time the best interests of the two stepchildren were not well-served by the Applicant’s use of illicit substances, involvement in their distribution, and his subsequent imprisonment. The Tribunal has found at [72] above that the Applicant remains a moderate risk of reoffending. Any relapse to illicit substance use or further offending would set a poor example to the stepchildren, potentially expose them to danger and financial difficulty and adversely impact on the Applicant’s capacity to act in a responsible parental role.
The likely effect of any separation of the Applicant and the stepchildren is clear in the Applicant’s response to the question put by Mr Dennis in cross examination (Transcript/43): “So, if you were to go back to New Zealand, would you stay in contact with your family by, you know online, like by Facetime or other online facilities?”. The Applicant responded as follows:
Probably not… Because I don’t want to see the hurt in their eyes – or the hurt in their voice every time we have a conversation. It would be harder to hear that or see them on video call knowing I’ve been deported and they’re here when there’s nothing that can be done about it. So, no I probably wouldn’t be in contact with them. And that’s just my honest opinion, just for myself. I’d rather them just forget who I am really, as sad as it is.
The Tribunal considers that it would be in the best interests of the Applicant’s minor stepchildren to have a loving father figure present in their lives, and this weighs in favour of revocation of the Cancellation Decision. However, the matters raised in this consideration limit the weight that the Tribunal finds fair and appropriate to all the circumstances. Accordingly, the Tribunal gives moderate weight to the best interests of the Applicant’s stepchildren LS and LN.
Applicant’s nephews and nieces
In addition to the 20 children identified at [89] above, the Applicant states that he has “100 plus more nieces and nephews in my life…” (G18/109). There is no evidence before the Tribunal such that the best interests of any of these children should be afforded individual consideration pursuant to Direction 99 para 8.4(3).
The Applicant sees his nieces and nephews at rugby games, cultural functions, birthdays and family functions, and submits that they would lose their “class clown” uncle if he was to be removed from Australia (G17/95). The Applicant states, and there is no evidence otherwise, that he does not play a parental role with these children. The Tribunal notes that the Applicant’s interactions with his nieces and nephews have been necessarily restricted as a consequence of his incarceration and immigration detention, and that the children would have access to other uncles and aunties by virtue of the Applicant’s extensive family in Australia. Further, as submitted by the Respondent (Exhibit R5, para 38), the Applicant could maintain contact with his nieces and nephews by alternative means should he be returned to New Zealand.
In these circumstances, and because the primary care and needs of these minor children are met by others, the Tribunal affords very limited weight to the consideration of the best interests of the Applicant’s nieces and nephews.
Tribunal’s conclusion – best interests of minor children
The Tribunal concludes that the best interests of minor children in Australia affected by this decision would be met by the revocation of the Cancellation Decision and the Applicant remaining in Australia. Taking into account all of the relevant considerations listed in Direction 99 para 8.4 and having carefully and sympathetically balanced the evidence before it, the Tribunal finds that this fourth primary consideration weighs moderately in favour of revocation of the Cancellation Decision.
Fifth primary consideration: Expectations of the Australian Community (para 8.5)
The Minister contends that (Exhibit R1, para 41):
…the Tribunal should find that this primary consideration weighs heavily against revocation. In particular, the applicant committed serious drug, dishonesty, violent, property and traffic offences. Through his offending he has put members of the Australian community at considerable risk. The applicant's interactions with the criminal justice system are all at the expense of the Australian community.
Paragraph 8.5 of Direction 99 provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Paragraph 8.5 of Direction 99 provides a statement of the expectations of the Australian community as a whole, and in this respect, the Tribunal must proceed on the basis of the Government’s views as articulated in para 8.5 without independently assessing the community’s expectations in this particular case. The principles set out in para 5.2 of Direction 99 are also relevant to this consideration.
Paragraph 8.5(2) of Direction 99 directs that non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not continue to hold a visa. Relevantly in the Applicant’s case, this type of conduct includes crimes against government representatives or officials in the performance of their duties (Direction 99 para 8.5(2)(d)). In November 2003, the Applicant was convicted of “assault occasioning bodily harm” and “assault public officer”, the assaults being on police officers.
The Tribunal notes that Direction 99 para 8.5(3) informs that the expectations stated in para 8.5 apply regardless of whether the non-citizen poses a measurable risk of physical harm to the community.
The Tribunal has careful regard to the principle provided in Direction 99 para 5.2(5) whereby a higher level of tolerance of criminal or other serious behaviour will generally be afforded to non-citizens who have lived in Australia from a very young age. However, the Tribunal must balance this consideration against the Applicant’s serious and extensive offending and the totality of relevant considerations, including the previous cancellation of his visa (see para [5] above) and the subsequent revocation of that cancellation accompanied by a formal warning (G27/145; G28/147). In the Tribunal’s assessment, consideration of these factors diminishes any greater level of tolerance the community may have afforded the Applicant given his long time in Australia.
This fifth primary consideration will, in most cases weigh against revocation of a cancellation decision when the expectations of the Australian community have been breached. However, it remains for the Tribunal to determine the appropriate weight to be assigned. The Tribunal has found that the Applicant has committed serious offences, offended subsequent to a previous cancellation of his visa, and that he should not be afforded greater tolerance because of his presence in Australia from a young age. The expectation of the Australian community would be that the Applicant’s visa should remain cancelled. Overall, the Tribunal finds that the expectations of the Australian community weigh heavily against revocation of the Cancellation Decision.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
In his written submission (FS2/3-10), the Applicant does not address the “other considerations”. The Respondent in Exhibit R5 only provides submissions regarding the extent of impediments if removed (Exhibit R5, para 43), and told the Tribunal that the only relevant other consideration is impediments that the Applicant may face if removed (Transcript/9).
Legal consequences of decision under section 501 or 501CA (para 9.1)

Paragraph 9.1 of Direction 99 provides:
(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) 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.
Neither the Applicant nor the Respondent made any representations regarding a decision not to revoke the Cancellation Decision or any legal issues related to his return to New Zealand. While the Tribunal acknowledges the legal consequences of a decision not to revoke the Cancellation Decision, as the effect of cancellation and removal are taken into account under other considerations such as the Applicant’s ties to Australia, the best interests of his children and the extent of impediments if removed, the Tribunal considers this consideration to be neutral in the Applicant’s matter.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(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.
The Applicant told the Tribunal that he had only ever known Australia and would not know anybody or anything in New Zealand. The Applicant said that he would face mental health challenges if returned to New Zealand, and that his family would not accompany him because: “they’re not going to somewhere where they have nothing either because this is all they know” (Transcript/43).
During the hearing the Respondent submitted that “there is no evidence of any significant impediments” (Transcript/9). In Exhibit R5 at [43], the Respondent submits:
The Minister contends the applicant will be able to establish himself and maintain basic living standards (9.2(1)). The applicant is in good health, and there are no language or cultural barriers to overcome. The applicant also has a strong history of employment. The applicant is likely to maintain the same or similar standard of living as in Australia, given there is no evidence that he will be unable to access the same or similar social, medical and economic support as other citizens of New Zealand: Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
The Applicant arrived in Australia on 23 December 1987 at the age of three years. He has not listed any health issues in his Personal Circumstances Form dated 27 September 2021 (G17/99), however he has subsequently mentioned mental health issues related to childhood trauma (FS2/4) and his intention to engage in sexual abuse counselling on release from immigration detention (FS2/7). The Applicant has not been diagnosed with a mental health illness (para [69](d) above refers). There is no evidence that mental health support would not be available to the Applicant in New Zealand should he choose to engage with mental health services.
The Tribunal accepts that the Applicant may face difficulty in establishing himself in New Zealand particularly in circumstances where he has been in Australia from a very young age, and that he will suffer emotional distress as a result of removal and separation from family. However, the Tribunal considers there is no evidence to suggest that the Applicant would be prevented from establishing himself and maintaining basic living standards in New Zealand in the context of what would be available to other New Zealand citizens, having the absence of significant language or cultural barriers in New Zealand.
During cross examination by Mr Dennis, the Applicant’s mother was asked whether she would visit her son if he was removed to New Zealand. She replied: “I have no choice. I have no choice but to follow him” (Transcript/53).
The Tribunal notes that the Applicant has been involved with the Cook Island community and its traditional music and community events (G23/122), and so retains a connection, albeit perhaps limited, with his culture.
In previous cases, the Tribunal has on occasion noted the role of organisations such as People at Risk Solutions (PARS) which is a charity in New Zealand that provides specialist support to prisoners, released prisoners and deportees to assist with their transition back into society. In CFVG and Minister for Immigration and Border Protection [2017] AATA 1395, the Tribunal stated at [90]:
…The Tribunal also notes the considerable effort of organisations like PARS to assist deportees from Australia to New Zealand. This is a significant social undertaking and its benefits to men like CFVG should not be underestimated…
Overall, the Tribunal finds that the Applicant is likely to encounter some difficulties and challenges establishing himself if he were to return to New Zealand, but does not consider them to be insurmountable. Taking into account all the evidence, the Tribunal finds that the extent of the impediments the Applicant may face if removed weighs slightly in favour of revocation of the Cancellation Decision.
Impact on victims (para 9.3)
Paragraph 9.3(1) of Direction 99 states:
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.
There are victims of the Applicant’s offending. However, there are no submissions from the parties and no information before the Tribunal regarding the effect of a decision under s 501CA of the Migration Act with respect to the revocation of the Cancellation Decision. Other than as discussed above under the primary considerations of protection of the Australian community and the expectations of the Australian community. Consequently, this other consideration is not relevant in the Applicant’s case.
Impact on Australian business interests (para 9.4)
Paragraph 9.4(1) of Direction 99 states:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to 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.
The Applicant has a record of employment in Australia, and submits that on release from immigration detention he plans to “[g]ain employment in the construction, mining, oil and gas industry that I have qualifications for and have done for 20 years” (FS2/7). However, there is no evidence that a decision in the present matter would compromise the delivery of a major project or an important service in Australia as comprehended in the above paragraph.
The Tribunal concludes that this consideration weighs neither for nor against revocation of the Cancellation Decision.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is “another reason” why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction 99. Throughout, the Tribunal has been mindful of the principle articulated in Direction 99 para 5.2(5) (para [27] above refers).
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. The Tribunal is guided by the relevant comments by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775. While this case looked at the weighing exercise under an earlier Ministerial Direction issued under s 499 of the Migration Act, the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to earlier Ministerial Directions. Wigney J commented at [22]:
…. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
As noted by Deputy President Boyle in James and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2390 at [112]:
Whether this particular consideration does or does not outweigh any other particular consideration (or considerations) is not the relevant test. In weighing the considerations, primary and other, the exercise is not one of comparing one against another, but rather of giving weight to each of the considerations and weighing them as a whole, those for and those against revocation and determining which have the greater weight in total, those for or those against revocation.
The Tribunal has considered all of the primary considerations, noting that the consideration of family violence was not relevant in the Applicant’s circumstances.
Having determined that the Applicant’s offending was very serious and his risk of reoffending unacceptable, the Tribunal found that the protection of the Australian community weighs very strongly against revocation of the Cancellation Decision.
The strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revocation of the Cancellation Decision.
The best interests of the Applicant’s minor children weigh moderately in favour of revocation of the Cancellation Decision.
The expectations of the Australian community weigh heavily against revocation of the Cancellation Decision.
In relation to the relevant “other considerations” identified in Direction 99, the Tribunal finds that the extent of impediments if removed weighs slightly in favour of revocation of the Cancellation Decision. In the Applicant’s circumstances, the Tribunal found the other considerations legal consequences of the decision, impact on victims and impact on Australian business interests to be neutral or not relevant and therefore not included in the weighing exercise.
The Applicant has a significant criminal history and has committed a serious drug offence. The community’s tolerance for this type of offending is low because of the unacceptable risk it presents of serious harm to the community, perpetuating the trade and consumption of illicit drugs. Further, the Applicant reoffended after his visa had been cancelled previously as a consequence of serious offences and a significant term of imprisonment. The Applicant acknowledged receipt of a formal warning when that first visa cancellation was revoked. In all the circumstances, the Australian community would expect his visa to remain cancelled.
In this case there are countervailing considerations. As stated above, the best interests of minor children in Australia affected by the decision and the strength nature and duration of ties to Australia both weigh moderately in favour of revocation of the Cancellation Decision, while the extent of impediments if removed attracts a slight weight. Having very careful regard to all the considerations and circumstances, the Tribunal finds that these countervailing considerations are outweighed by the substantial weight of the two primary considerations protection of the Australian community and expectations of the Australian community.
In summary, having regard to the relevant primary considerations and the relevant other considerations in Direction 99, the Tribunal is satisfied that there is no “another reason” why the Cancellation Decision should be revoked. It follows that the correct or preferable decision is to affirm the decision of the delegate made on 17 February 2023 not to revoke the cancellation of the Applicant’s visa.
DECISION
The decision of the delegate of the Respondent made on 17 February 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Brigadier AG Warner, AM LVO (Retd), Member.

.................[Sgd].......................................................
Associate
Dated: 15 May 2023

Date of hearing: 20 April 2023 and 28 April 2023

Applicant: Self-represented

Counsel for the Respondent: Mr L Dennis

Solicitors for the Respondent: Minter Ellison Lawyers
Annexure A

Court Result Date Offence Offence Date Result

Rockingham Magistrates Court 27-Aug-2021 Gains Benefit by Fraud 9-Jan-18 Imprisonment: 3 Months

Rockingham Magistrates Court 27-Aug-2021 Gains Benefit by Fraud 21-Nov-17 Imprisonment: 3 Months

Rockingham Magistrates Court 27-Aug-2021 Possessed drug paraphernalia in or on which there was a prohibited drug or plant 14-Aug-18 FINE: $600 (global)

Rockingham Magistrates Court 27-Aug-2021 Possessed drug paraphernalia in or on which there was a prohibited drug or plant 14-Aug-18 FINE: $600. (global)

Rockingham Magistrates Court 27-Aug-2021 Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis) 14-Aug-18 Imprisonment: 3 Months

Rockingham Magistrates Court 27-Aug-2021 No authority to drive (never held) 14-Aug-18 FINE: $600

Rockingham Magistrates Court 27-Aug-2021 No authority to drive (never held) 14-Aug-18 Mdl Disqualified: 3 mths

Perth District Court 05-Aug-2021 Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine) 14-Aug-18 Imprisonment: 2 Years 4 Months

Rockingham Magistrates Court 13-Jan-2020 Stealing 1-Dec-18 FINE: $5000.

Rockingham Magistrates Court 24-Oct-2019 Driving with prescribed illicit drug 13-Aug-18 FINE: $350 MDL Disqualified: 3 mths

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 28-Jun-12 Imprisonment: 6 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 5-Jul-12 Imprisonment: 12 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 30-Nov-2012 Imprisonment: 6 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 30-Nov-2012 Imprisonment: 3 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 30-Nov-2012 Imprisonment: 6 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 25-Dec-2012 Imprisonment: 12 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 19-Jan-2013 Imprisonment: 6 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 29-Jan-2013 Imprisonment: 12 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 04-Mar-2013 Imprisonment: 14 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 21-Nov-2013 Imprisonment: 2 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 21-Nov-2013 Imprisonment: 6 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 21-Nov-2013 Imprisonment: 18 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 21-Nov-2013 Imprisonment: 12 Months

Perth District Court 27-Jun-2014 Gains Benefit by Fraud 21-Nov-2013
Imprisonment: 6 Months

TOTAL TERM: 2 YRS 8 MTHS IMP FROM 26/02/2014

Perth Magistrates Court 06-Sep-2013 Exceed speed limit in a speed zone; Between 10 and 19km/h 26-Jul-13 FINE: $150

Perth Magistrates Court 06-Sep-2013 No Authority to Drive 26-Jul-13 FINE: $600

Mandurah Magistrates Court 30-Jan-2008 No Driver's License 17-Dec-07 FINE: $400 Mdl Disqualified: 9 mths

Mandurah Magistrates Court 30-Jan-2008 Unlicensed Vehicle 17-Dec-07 FINE: $100

Mandurah Magistrates Court 30-Jan-2008 Exceed speed limit in a speed zone; Between 10 and 19km/h 17-Dec-07 FINE: $150

Rockingham Magistrates Court 25-Oct-2007 No Driver's License 14-Sep-07 FINE: $500; Mdl Disqualified: 9 mths

Perth Magistrates Court 04-Jul-2007 No Motor Drivers License 19-Jun-07 FINE: $300; DISQ HOLD/OBT MDL 3 MTHS MAND

Fremantle Court of Petty Sessions 10-Nov-2003 Assault Occasioning Bodily Harm Not Known Imprisonment: 6 Months; CONC SENT SUSP for 18 mths

Fremantle Court of Petty Sessions 10-Nov-2003 Assault Public Officer Not Known FINE: $300

Date of hearing:	20 April 2023 and 28 April 2023
Applicant:	Self-represented
Counsel for the Respondent:	Mr L Dennis
Solicitors for the Respondent:	Minter Ellison Lawyers

Court	Result Date	Offence	Offence Date	Result
Rockingham Magistrates Court	27-Aug-2021	Gains Benefit by Fraud	9-Jan-18	Imprisonment: 3 Months
Rockingham Magistrates Court	27-Aug-2021	Gains Benefit by Fraud	21-Nov-17	Imprisonment: 3 Months
Rockingham Magistrates Court	27-Aug-2021	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	14-Aug-18	FINE: $600 (global)
Rockingham Magistrates Court	27-Aug-2021	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	14-Aug-18	FINE: $600. (global)
Rockingham Magistrates Court	27-Aug-2021	Possession of Prohibited Drugs with Intent to Sell or Supply (Cannabis)	14-Aug-18	Imprisonment: 3 Months
Rockingham Magistrates Court	27-Aug-2021	No authority to drive (never held)	14-Aug-18	FINE: $600
Rockingham Magistrates Court	27-Aug-2021	No authority to drive (never held)	14-Aug-18	Mdl Disqualified: 3 mths
Perth District Court	05-Aug-2021	Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)	14-Aug-18	Imprisonment: 2 Years 4 Months
Rockingham Magistrates Court	13-Jan-2020	Stealing	1-Dec-18	FINE: $5000.
Rockingham Magistrates Court	24-Oct-2019	Driving with prescribed illicit drug	13-Aug-18	FINE: $350 MDL Disqualified: 3 mths
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	28-Jun-12	Imprisonment: 6 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	5-Jul-12	Imprisonment: 12 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	30-Nov-2012	Imprisonment: 6 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	30-Nov-2012	Imprisonment: 3 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	30-Nov-2012	Imprisonment: 6 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	25-Dec-2012	Imprisonment: 12 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	19-Jan-2013	Imprisonment: 6 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	29-Jan-2013	Imprisonment: 12 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	04-Mar-2013	Imprisonment: 14 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 2 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 6 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 18 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 12 Months
Perth District Court	27-Jun-2014	Gains Benefit by Fraud	21-Nov-2013	Imprisonment: 6 Months TOTAL TERM: 2 YRS 8 MTHS IMP FROM 26/02/2014
Perth Magistrates Court	06-Sep-2013	Exceed speed limit in a speed zone; Between 10 and 19km/h	26-Jul-13	FINE: $150
Perth Magistrates Court	06-Sep-2013	No Authority to Drive	26-Jul-13	FINE: $600
Mandurah Magistrates Court	30-Jan-2008	No Driver's License	17-Dec-07	FINE: $400 Mdl Disqualified: 9 mths
Mandurah Magistrates Court	30-Jan-2008	Unlicensed Vehicle	17-Dec-07	FINE: $100
Mandurah Magistrates Court	30-Jan-2008	Exceed speed limit in a speed zone; Between 10 and 19km/h	17-Dec-07	FINE: $150
Rockingham Magistrates Court	25-Oct-2007	No Driver's License	14-Sep-07	FINE: $500; Mdl Disqualified: 9 mths
Perth Magistrates Court	04-Jul-2007	No Motor Drivers License	19-Jun-07	FINE: $300; DISQ HOLD/OBT MDL 3 MTHS MAND
Fremantle Court of Petty Sessions	10-Nov-2003	Assault Occasioning Bodily Harm	Not Known	Imprisonment: 6 Months; CONC SENT SUSP for 18 mths
Fremantle Court of Petty Sessions	10-Nov-2003	Assault Public Officer	Not Known	FINE: $300