TZYV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 93

TZYV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 93 (25 January 2024)
Division:GENERAL DIVISION
File Number: 2023/8373
Re:TZYV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:25 January 2024
Date of written reasons: 31 January 2024
Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 8 November 2023 is set aside; and in substitution, the Tribunal decides that the cancellation of the applicant's Class BC (Subclass 100) Spouse visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.
..........[SGD]..............................................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
MIGRATION – Migration Act 1958 (Cth) – whether applicant passes character test – where applicant sentenced to a 12 month Intensive Corrections Order – whether Intensive Corrections Order is a ‘term of imprisonment’ under the Migration Act – non-revocation of mandatory visa cancellation – Direction No.99 – protection of Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – domestic violence and drug offences – where applicant’s children in the care of his mother – where expert evidence suggests children would benefit from applicant’s presence – decision under review set aside
Legislation
Crimes (Sentencing Procedure) Act 1999 (NSW)
Interpretation Act 1987 (NSW)
Migration Act 1958 (Cth)
Penalties and Sentences Act 1992 (Qld)
Cases
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 585
Nuon v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 197
Secondary Materials
Direction No.99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
31 January 2024
INTRODUCTION

The applicant has applied to the Tribunal for merits review of a decision dated 8 November 2023 made by a delegate of the Respondent not to revoke the cancellation of the applicant's Class BC (Subclass 100) Spouse visa.
His application was heard on 23 and 24 January 2024. He was represented by Mr B. Zipser of counsel, instructed by Mr B. Lakhani, solicitor, of Path Migration. The Minister was represented by Mr A. Gardner, solicitor, of Mills Oakley Lawyers.
The Tribunal heard from the applicant, his mother DTT, and his first cousin, NCG. Each of these witnesses provided a written statement. The Tribunal also heard from an expert witness, a psychologist, who provided a provided a detailed 26-page report dated 16 January 2024. The Tribunal was assisted by a Vietnamese interpreter.
On 25 January 2024 the Tribunal decided to set aside the reviewable decision. The Tribunal indicated that it would provide reasons within a reasonable time. These are the reasons of the Tribunal.
BACKGROUND
The applicant was born in Vietnam in 1992.[1] He has no memory of his father, who left the family soon after he was born.[2] His mother, DTT, was born in May 1952.[3] Her schooling was interrupted by the war-time conditions in her home country. Apart from her son, the applicant, she has a daughter born in May 1984, who remains in Vietnam.
[1] G2, 99-100.
[2] G2, 86; ATB, 43.
[3] G2, 99.
In 2009 DTT decided to unite with her new partner in Australia, and to bring the applicant with her. They arrived on 12 August 2009. He travelled on her provisional partner visa.[4] As often happens, in time friction developed between the teenage boy and his mother’s new partner, which led to him spending more time away from home.
[4] G2, 99-100.
On 25 October 2010, the applicant was granted a Class BC Subclass 100 (Permanent) Partner visa.
He started using drugs in 2011 and was soon addicted to methamphetamine (ice) and Xanax.[5] He continued to use drugs in varying degrees until he entered prison in May 2021.
[5] Applicant’s Statutory Declaration, ATB, 8, [92].
In 2011, he met TTN, a young woman around his own age, and she soon fell pregnant. They had two children together. Their daughter ZTN was born in April 2012 and their son KTN was born in December 2012. They were both pre-term babies, due to antenatal and perinatal drug use.
According to a Care Plan developed by the Department of Communities and Justice, and provided to the Tribunal, ZTN was taken into care in 2012.[6]
[6] ATB, 157.
The relationship between the applicant and TTN was tempestuous and dysfunctional. They were both heavy drug users. On 27 March 2013, they had a late-night argument which descended into violence. Police attended the property and charged the applicant with domestic violence offences (assault and stalk intimidate). ZTN was then 11 months old and KTN three months old.
As a result of this incident, the children were placed by child welfare authorities in the joint care of DTT and TTN.[7] On 7 July 2013, the Children’s Court made Care Orders allocating parental responsibility for both children to DTT and TTN for four years.[8]
[7] ATB, 161.
[8] ATB, 162.
In 2014, the relationship between the applicant and TTN ended. She moved out with both children. The child protection agency continued to have concerns about their welfare. Risk assessments were undertaken relating to the mother’s drug use, her failure to attend specialist appointments, and finally, in 2016, DTT alerted authorities to the possibility that ZTN had been sexually assaulted because she complained of having a sore vagina. This resulted in the involvement of a joint investigation response team.[9]
[9] ATB, 162, 163, 166.
On 15 May 2016, the applicant was charged with property damage to TTN’s car.[10] According to the police statement he wanted to talk to her, and she refused to come out of the house where she was staying (her parent’s home). He then took his frustration out on the car by kicking it, which caused some damage.
[10] RTB, 20
On 30 June 2016, the children were removed from TTN’s care by reason of neglect, including a failure to protect ZTN from possible sexual abuse by a third party.[11] They were placed for one night in foster care and then with DTT.[12] On 7 November 2016, the Children’s Court made Final Orders allocating parental responsibility for the children to the Minister of Family and Community Services until the age of 18.[13] The children were cared for on a daily basis by DTT.
[11] ATB, 163.
[12] ATB, 163.
[13] ATB, 18, 20.
In mid-2016 the applicant formed a new relationship with TMQ, an 18-year-old.[14] She was six years younger than him. The relationship was immature and dysfunctional.[15]
[14] ATB, 4 at [39].
[15] ATB, 4 at [41].
On 28 July 2017, TMQ went through his phone and found a text message from another woman which made her think he was cheating on her. A verbal altercation ensued, and blows were exchanged. He was arrested on 30 July 2017 and spent a night in the cells. He was charged the next day with assault occasioning actual bodily harm and possession of an illicit drug.[16]
[16] G2, 54.
On 18 November 2017, TMQ was at an internet café, when the applicant entered with friends and started to play a computer game.[17] TMQ removed the applicant’s jumper from the seat next to him and sat down to watch him play. An argument erupted and they moved outside. At some point he lifted his arm in a threatening manner. They both went to the police station to make reports about each other. The police viewed CCTV footage. They were both arrested and refused to participate in electronic recorded interviews. The applicant was subsequently charged with assaulting TMQ and contravening an AVO. He spent a night in custody and was then released on bail.[18]
[17] G2,51.
[18] G2,49-52.
On 5 March 2018, he was stopped and searched by police. He was found to be in possession of a prohibited weapon, namely, an extendible baton.[19]
[19] RTB, 30.
On 7 May 2018, he was sentenced for the offences committed against TMQ on 28 July 2017 and 18 November 2017. He was sentenced to 150 hours of community service for the aggravated assault and the drug possession, and a good behaviour bond for the common assault and the AVO breach.[20]
[20] G2, 30.
On 8 May 2018, he was charged with possession and supplying an indictable quantity of drugs. He was remanded in custody. He was released on bail on 19 December 2018.[21] The charge of commercial supply was subsequently withdrawn.[22]
[21] G2, 61.
[22] Bail Report, p 6.
On 26 May 2018, TMQ had a baby girl ZAQ.[23] The applicant told the Tribunal that he initially believed ZAQ to be his child, and his relationship with TMQ was rekindled. When he was released in December 2018, they started living together again. He says that he used his time on remand to learn English and he had basic English by the time of his release.[24]
[23] ATB, 4 at [47].
[24] ATB, 1, paras [11]-[12].
If there is a respite from troubles, it appears to have been the year that he spent with TMQ in 2019. Unfortunately, in December 2019, he was alerted by a mutual friend to the possibility that the child might not be his. He organised a DNA test and discovered that he was not related to ZAQ. He reacted badly to this shock. At 6 am on 24 January 2020, he deliberately drove a car into her parked car, which was parked on the driveway in front of the house where TMQ was living.[25] The police notes record that the applicant:
has reversed down the driveway and has again accelerated into the rear of the victim’s vehicle. The accused has continued to accelerate and has pushed the victim's vehicle forward 1 metre leaving a skid mark along the ground.[26]
[25] G2, 45-46.
[26] RTB, 93.
He then sat on the ground and waited for the police to arrive. When the police arrived, his car was searched. The police found capsules and a notebook containing a list of names. The police considered that he might be supplying drugs.[27] He was arrested and was taken into custody.
[27] G2, 48.
On 25 January 2020, he was charged with driving while unlicensed, property damage and stalk/intimidate, possession of stolen goods, and possession of prohibited drugs.[28] He was remanded until 30 March 2020, when he was released on bail.[29]
[28] G2, 37.
[29] G2, 60.
His risk-taking behaviour appears to have increased after his release on bail. On 15 June 2020, he was caught driving a friend’s black BMW. He had no licence and was duly charged.[30] He was fined $500.[31]
[30] RTB, 35-36.
[31] RTB, 56.
On 7 October 2020, he was sentenced by the Local Court to a 12-month term of imprisonment served by way of an Intensive Corrections Order (ICO) for the more serious offences committed on 24 January 2020.[32] The court imposed a final AVO, which included a condition not to have any contact with TMQ unless it was in relation to the children and ‘you have got some agreement about that’.[33] He was fined $300 for the unlicensed driving offence.[34]
[32] Never licensed person drive vehicle on road-first offence; Destroy or damage property (DV); Stalk/intimidate intend fear physical/mental harm (domestic)-T2; Goods in personal custody suspected being stolen (not m/v): G2, 32.
[33] G2, 36.
[34] RTB, 56.
On 11 November 2020, he was stopped while driving the same black BMW. An ice pipe was found in the car. On 14 November 2020, he was charged with unlicensed driving and possession of equipment for administering a prohibited drug. On 7 December 2020, he was fined $1,000 for the driving offence and $750 for the ice pipe.[35]
[35] RTB 42, 44.
On 11 December 2020, at 3:25 am, he was intercepted driving a Lexus above the speed-limit.[36] There were four men in the car. Something was thrown from the car, but it was not recovered by the police. At the police station, a further search of his property was conducted which revealed some Xanax tablets. He was charged with unlicensed driving and possession.
[36] ATB, 46.
On 21 December 2020, he was convicted of the offences committed on 24 January and 11 December 2020. He was sentenced to a Community Corrections Order of 12 months and driver disqualification for 12 months, and various fines.[37]
[37] ATB 35-37.
On 30 December 2020, at around 8:15 am, he was stopped by police while driving a gold Range Rover which came up on the police system as linked to an outlaw motorcycle gang. He was unable to produce a driver’s licence and a flick knife was found in a hidden compartment.[38] He was arrested for the purpose of a secondary fluid test and escorted to the police station. A sample of oral fluid was sent for analysis which confirmed the presence of methamphetamine in his system. He was issued with a court attendance notice for driving with an illicit drug present in blood,[39] and allowed to go. He was subsequently convicted for this offence on 21 April 2021.[40]
[38] RTB, 86.
[39] RTB, 60.
[40] G2, 29.
On the evening of 30 December 2020 at 7:30 pm, police went to his mother’s home. TMQ was at the address and said that the applicant would be home soon. She said she had come over to celebrate New Year’s Eve. The police found a white Mercedes previously reported stolen and a new Seamaster motorboat, which they suspected of being stolen. All identifying marks had been removed and the applicant is reported to have said that a friend owed him $5,000 and had given him the boat instead.[41]
[41] RTB, 83.
TMQ’s presence at his mother’s home constituted a breach of the AVO. According to the police report, she said ‘Can’t you give him a warning, we are only seeing each other for NYE’.[42] The applicant was arrested and conveyed to the police station.[43]
[42] G2, 44.
[43] G2, 43.
Considering the ramming incident that occurred on 24 January 2020, and his reaction to the fact that TMQ’s daughter ZAQ was not his, her presence at his mother’s place on 30 December 2020 suggests that the relationship between them was ongoing.
On 30 December 2020, he was charged with various offences relating to the events of the previous day.[44] He entered prison the following day, where he remained until he was released on bail on 23 March 2021.[45]
[44] RTB 52-55.
[45] G2, 60.
On 8 March 2021, he was sentenced for two of the offences committed on 30 December 2020. For custody of knife, no penalty was imposed pursuant to a section 10A conviction. For breach of the AVO, he was sentenced to 2 months and 7 days imprisonment.[46]
[46] G2 29, 60.
On 25 May 2021, the State Parole Authority made an order revoking the ICO.[47] On 27 May 2021, he was admitted to prison.[48] On 30 June 2021, the Parole Authority decided not to rescind the revocation order.[49]
[47] G2, 59.
[48] G2, 60.
[49] G4, 169.
On 9 July 2021, his Class BC Subclass 100 Spouse visa was cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). He was invited to make representations to the Minister about revocation of the original decision, and he did so.
On 7 October 2021, he was released from prison and transferred to immigration detention, where he was at the time of the hearing by the Tribunal. He spent a little over four months in prison pursuant to the sentence imposed on 7 October 2020.
On 8 November 2023, a delegate of the Minister decided not to revoke the cancellation of his visa.[50] On 13 November 2023, he applied to the Tribunal for review of this decision.
[50] G2, 11.
PART II - WHETHER THE APPLICANT FAILS THE CHARACTER TEST
Under the relevant sentencing legislation in New South Wales, a court that has sentenced a person ‘to imprisonment’ in respect of one or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.
An interesting aspect of this case is that the applicant has spent considerably less than 12 months in full-time custodial detention as a sentenced prisoner. As noted, on 7 October 2020, the court sentenced him a 12-month term ICO. In fact, he served well under 12 months in prison.
It may be accepted that the obligation imposed on the Minister by subsection 501(3A) to cancel a non-citizen’s visa does not arise in respect of a non-citizen who has spent the entirety of their sentence in the community. That is because the mandatory obligation to cancel the visa (conveyed by the word ‘must’) is subject to a requirement that the non-citizen is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.[51] The use of the present tense ‘is’ suggests that the Minister’s obligation to cancel the visa does not arise until such time as the non-citizen is experiencing full-time detention in a custodial institution.
[51] Migration Act, s 501(3A)(b).
However, this limitation is not reflected under subsection 501CA(4). Under that provision, the mandatory cancellation decision (called the original decision) may be revoked if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
It is accepted that the applicant made representations as required by (a). In deciding whether the applicant passes the character test (as defined by section 501), the task of the Tribunal is confined to the ground upon which the delegate determined that the applicant did not pass the character test. In this case, the delegate relied on paragraph (6)(a), invoking the applicant’s substantial criminal record, as defined by paragraph 7(c), which ‘for the purposes of the character test’ includes that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The applicant’s counsel submitted that the definition of ‘imprisonment’ in subsection 501(12) requires actual detention which has a punitive quality, relying on Nuon v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 197.[52]
[52] ASFIC, [16].
The Respondent contends that an ICO, even though it is a term of imprisonment to be served in the community, nevertheless satisfies paragraph 501(7)(c), citing Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113 (Brown).
The applicant’s counsel contended that because the court ordered (as it had power to do) that the sentence was to be served in the community, the applicant was not relevantly sentenced to a term of imprisonment. It was conceded that if he had a substantial criminal record, he did not pass the character test. But one could not proceed to that conclusion if he had not been sentenced to imprisonment at all. This argument must be rejected.
Section 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Procedure Act), provides, so far as is relevant:
(1) A court that has sentenced an offender to imprisonment in respect of 1 or more offences may make an intensive correction order directing that the sentence or sentences be served by way of intensive correction in the community.
Division 2 of the Sentencing Procedure Act is headed Custodial sentences, and provides for compulsory drug treatment detention in section 5A, and intensive correction orders in section 7.
Division 3 is headed Non-custodial alternatives, and includes community corrections orders (section 8), conditional release orders (section 9), dismissal of charges and conditional discharge of offender (section 10), and conviction with no other penalty (section 10A), and deferral of sentencing for rehabilitation, participation in an intervention program or other purposes (section 11). Section 9 and section 10 orders are each prefaced with the words ‘Instead of imposing a sentence of imprisonment’ on an offender.

Under paragraph 35(1)(a) of the Interpretation Act 1987 (NSW), headings to Divisions are taken to be part of the Act. This is a strong indication that for the purposes of the Sentencing Procedure Act, such measures are to be treated as custodial sentences.
Subsection 501(12) of the Act provides that, ‘sentence includes any form of determination of the punishment for an offence’, and ‘imprisonment includes any form of punitive detention in a facility or institution’. The use of the word ‘includes’ (as opposed to ‘means’) suggests a non-exhaustive formulation of the concepts of ‘sentence’ and ‘imprisonment’. This is indicative of an intent not to exclude diversionary penal measures such as the ICO from the purview of section 501.
Further support for this view may be found in a decision of the Full Court of the Federal Court relating to suspended sentences. In Brown, the full court of the Federal Court (Moore, Rares and Nicholas JJ) held that a suspended sentence of 12 months falls within the ambit of a ‘substantial criminal record’ in subsection 501(7) of the Act.[53]
[53] The ICO was introduced by the NSW Parliament to remedy some of the deficiencies of a suspended sentence, which is no longer available as a sentencing option in NSW.
Suspended sentences were provided for in section 12 of the Sentencing Procedure Act prior to being repealed.[54] Section 12 relevantly provided:
(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order:
(a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and
(b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence.
[54] See Crimes (Sentencing Procedure) Amendment (Sentencing Options) Act 2017 (NSW).
Rares J (Moore J agreeing) noted that the imposition of a suspended sentence involved two stages:
6. The essential feature of a suspended sentence of imprisonment is that it is necessarily a sentence to imprisonment for the term selected by the sentencing court as the appropriate punishment. The first stage of the two step process of sentencing an offender to a term of imprisonment is determined without regard to the fact that, at the second stage, the sentencer is to suspend it: Dinsdale 202 CLR 321 at [79]; Zamagias [2002] NSWCCA 17 at [27], [31].
His Honour’s analysis reveals that this first stage is significant, for it is the imposition of a term of imprisonment to which subsection 501(7) is directed. His Honour held:
7. The structure of s 501 recognises that there are varying degrees of punishment sufficiently serious to amount to a substantial criminal record for the purposes of s 501(6)(a) and (7). The definitions of “imprisonment” and “sentence” in s 501(12) are in the inclusive form; that is, each definition elucidates but does not limit the ordinary and natural meaning of the word. A sentence of imprisonment for not less than 12 months that is wholly suspended is a very serious penalty. The focus of s 501(7)(c) and (d) is on the length of the term of imprisonment to which the person is sentenced, not the manner in which the sentence is to be, or subsequently may be, served.
…
9. The ordinary and natural meaning of the expression used in s 501(7) describes the penalty imposed as distinct from the time, if any, required to be served in prison. The step of suspending a sentence of imprisonment actually imposed occurs after, and is distinct from, the initial imposition. Thus, s 501(7)(c) looks to the initial imposition of a sentence and is not concerned with the subsequent way in which that sentence is enforced.
In a separate but concurring judgment, Nicholas J reached the same conclusion that subsection 501(7) is concerned with the sentence imposed, not the term of imprisonment actually served: at [74], [114].
Therefore, a suspended sentence was relevantly a term of ‘imprisonment’ even if the person has not been ‘detained in a facility or institution’ for 12 months or more. I have not been referred to any Federal Court authority directly in point, although I note that BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 585 has some parallels with the present case, in that an ICO was revoked part way through the sentence, but the point was not taken or discussed by the Court.
ICOs imposed pursuant to section 7 of the Sentencing Procedure Act relevantly involve the ‘two-step process’ identified by Rares J in Brown. That is, the sentencing court must first determine that a term of imprisonment is to be imposed before proceeding to direct that the sentence is to be served by way of intensive correction in the community. This bears significant similarity to the sentencing regime for suspended sentences under the now-repealed section 12 of the Sentencing Procedure Act. A precondition for making an order for suspension of the sentence was that a term of imprisonment had been imposed. It is difficult to identify any feature of an ICO that would relevantly distinguish it from a suspended sentence order, such that the Tribunal is not bound by the decision in Brown.
The reasoning of Rares and Nicholas JJ in Brown has been applied to ICOs by the Tribunal.[55]
[55] See, for example, DFHB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3813 at [22]-[29]; Onwong'a and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4631 at [23]-[25], and YYZQ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4647 at [19]-[34]. YYZQ was affirmed on appeal; however, the self-represented Applicant did not raise this issue: YYZQ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 919 at [31]-[32] per Katzmann J.
Before leaving this aspect, I note one unsettling aspect arising from the lack of uniformity between jurisdictions, not only in substantive criminal law but also in procedural law and sentencing. As Rares J noted (at [9]) in Brown:
The construction of the expression "sentenced to a term of imprisonment" in s 501(7) cannot depend on the vaguery or intricacies of different sentencing regimes in many jurisdictions. It may be that some particular legislation introduces the unusual concept that a suspended sentence to term of imprisonment is to be treated differently to the ordinary and natural meaning of that expression. In such a case an argument may be open that such a sentence does not fall with s 501(7)(c) or (d). However, that situation need not be considered here. The ordinary and natural meaning of the expression used in s 501(7) describes the penalty imposed as distinct from the time, if any, required to be served in prison. The step of suspending a sentence of imprisonment actually imposed occurs after, and is distinct from, the initial imposition. Thus, s 501(7)(c) looks to the initial imposition of a sentence and is not concerned with the subsequent way in which that sentence is enforced.
However, this problem may need to be addressed at some point in the future in relation to ICOs. For example, section 113 of the Penalties and Sentences Act 1992 (Qld) provides:
(1)The effect of the order is that the offender is to serve the sentence of imprisonment by way of intensive correction in the community and not in a prison.
(2)For the purposes of the provisions of an Act providing for disqualification for, or loss of, office or the forfeiture of benefits, the offender is taken not to have been sentenced to a term of imprisonment. (Emphasis added)
It is not clear whether a deeming provision such as that contained in subsection 113(2) would lead to a different result in a visa cancellation case involving ICOs imposed in Queensland. Importantly, there does not appear to be any equivalent limitation imposed by the NSW legislation.[56]
[56] In Victoria, intensive correction orders, combined custody and treatment orders, community-based orders and home detention were all abolished as sentencing (or post-sentence) options on 16 January 2012 by the Sentencing Amendment (Community Correction Reform) Act 2011 (Vic). See now Sentencing Act 1991 (Vic), section 36. See Suspended Sentences and Other Abolished Sentencing Orders | Sentencing Council
I conclude that a person sentenced to 12 months or more to be served by way of an ICO in NSW may be taken to have been sentenced to a term of imprisonment of 12 months or more within the meaning of paragraph 501(7)(c) of the Act.
I therefore find that the applicant does not pass the character test as defined by paragraph 501(6)(a) of the Act.
I therefore turn to consider whether there is ‘another reason’ under paragraph 501CA(4)(b)(ii) why the cancellation of his visa should be revoked.
PART III - EXERCISING THE DISCRETION UNDER SUBSECTION 501CA(4)
Subsection 501CA(4) of the Act provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 499 of the Act provides that the Minister may give written directions to a person or body exercising powers and functions under the Act, where the directions relate to the performance of those functions or the exercise of those powers. Direction No. 99 (the Direction), enacted under section 499 and commencing on 3 March 2023, provides a range of considerations to which the Tribunal should have regard in exercising its discretion under subsection 501CA(4).
Part 1 of the Direction provides a set of principles that the Tribunal should have regard to when applying these considerations. Paragraph 5.2 of the Direction provides:
(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 noncitizens 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 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 noncitizen’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 risk of causing physical harm to the Australian community.
Informed by these principles, the Tribunal must approach its statutory task by applying Part 2 of the Direction. Part 2 includes five primary considerations in section 8 and four other considerations in section 9.
The section 8 primary considerations are as follows:
·Protection of the Australian Community (PC1)
·Family violence committed by the non-citizen (PC2)
·The strength, nature, and duration of ties to Australia (PC3)
·Best interests of minor children in Australia affected by the decision (PC4)
·Expectations of the Australian community (PC5)
The section 9 other considerations are as follows:
·Legal consequences of decision under section 501 or 501CA (OC1)
·Extent of impediments if removed (OC2)
·Impact on victims (OC3)
·Impact on Australian business interests (OC4)
These considerations are not exhaustive. There may be some reason not explicitly stated in the Direction which constitutes ‘another reason’ under paragraph 501CA(4)(b)(ii).
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction identifies certain factors to be considered under this heading.
Paragraph 8.1(1) reiterates the commitment of the Australian government to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision makers are required to 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.
Decision-makers are required to give consideration to the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct. Decision-makers must have regard to certain factors, including that some violent or sexual crimes, crimes of a violent nature against women or children, and acts of family violence are viewed very seriously by the Australian government and the Australian community. In the case of family violence, this applies regardless of whether there is a conviction, or a sentence imposed. The Direction also specifies certain factors to be considered, including the sentence imposed (except in cases involving crimes of a violent nature against women or children, and acts of family violence), frequency of offending, the cumulative effect of repeated offending, and whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The applicant’s offending has been set out in comprehensive detail above. His offending falls into five categories: offences against the person, including family violence; property damage; drug related offences; traffic offences; and some public order offences. Although it is sometimes difficult to disaggregate the offending, I especially note three convictions for assault and two convictions for stalk/intimidate.
On 27 March 2013, he and TTN had an argument which descended into violence. Police attended the property and charged the applicant with domestic violence offences (assault and stalk intimidate). On 3 June 2013 he was convicted of common assault (DV) and received a bond.
On 7 May 2018, he was sentenced for common assault on 18 November 2017, and assault occasioning actual bodily harm on 28 July 2017. TMQ was the victim of both these offences. He was sentenced to a good behaviour bond for the common assault 150 hours of community service for the aggravated assault.[57] Each of these sentences involved other offences.
[57] G2, 30.
I also note two offences of stalk/intimidate. The first (against TTN) was dealt with by way of a section 9 bond on 3 June 2013, and the second (against TMQ) was one of the offences leading to the imposition of an ICO on 7 October 2020.
The following additional offences relate to domestic violence generally, being two AVO contraventions and two property damage offences. These AVO contraventions were dealt with on 7 May 2018 (section 9 bond) and 8 March 2021 (imprisonment for 2 months and 7 days). The property damage offences were dealt with on 15 May 2016 ($350 fine) and on 7 October 2020 (one of the offences leading to the ICO).
The applicant’s record contains seven drug related convictions. These include five counts of possession (two in 2016 and three in 2020), one for possessing equipment for administering a drug (2020), and one for driving a vehicle with illicit drug present in blood (2021). He received fines totalling $3,650.00 for these offences.
His record contains five instances of unlicensed driving, for which he received fines totalling $2,800.00, all committed in 2020.[58] On 24 January 2020, he deliberately drove into a car parked in front of the house where his former partner was living.[59] On 15 June 2020, he was caught driving a friend’s black BMW.[60] On 11 November 2020, he was stopped again driving the same black BMW. On 11 December 2020, he was intercepted driving a Lexus above the speed limit.[61] On 30 December 2020, he was stopped by police while driving a gold Range Rover. At no point did he hold a driver’s licence. He told the Tribunal that he had tried to get a learner’s licence but was told he had to pay off his accumulated fines first.
[58] Convicted as follows: 8 March 2021 (S10A conviction); 21 December 2020 (Fine, $1000, 12 months disqualification); 7 December 2020 Fine, $1000, 12 months disqualification; 7 October 2020, Fine, $300; 1 September 2020 (Fine, $500).
[59] G2, 45-46.
[60] RTB, 35-36.
[61] ATB, 46.
For completeness, I note five offences relating to stolen goods (goods in custody suspected of being stolen) and three offences relating to custody of prohibited implements. These were dealt with by way of fine and community corrections orders, and for the offence of possession of a knife, by way of imprisonment for two months and seven days. He also has two convictions from 2013 relating to failing to appear in accordance with a bail undertaking.
The Tribunal is required to consider the risk to the community should the applicant continue to offend. The nature of the harm and the likelihood of further offending require consideration. Paragraph 8.1.2 of the Direction provides:
8.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(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 reoffending; 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).

In this context, the Tribunal received a comprehensive report from a psychologist who also gave oral expert evidence. The report states:
(6.3). What is perplexing in relation to [the applicant] is that he has no criminal record prior to age 18, and indeed he has few adolescent criminogenic factors that would be considered to predict adult course criminality (with the exception of some impulsivity and the pre-frontal cortex had not reached maturity). Extensive research indicates that there are two primary criminal typologies, the adolescent criminal trajectory and the life-course persistent criminal trajectory. The majority of studies indicate that most young offenders engage in criminal activity in their adolescence, but of this group only a small number go on to re-offend in adulthood. The majority of studies indicate that criminal behaviour starts by age 13, increases till age 17 and then deceases. This research is supported by Australian studies, with evidence indicates that even with young males with Conduct Disorder/conduct problems, this behaviour typically peaks in middle to late adolescence and then rapidly declines and tapers off for most by their early twenties. On reviewing [the applicant's] criminal record, it is noted that his criminality has started once in Australia and appears to have paralleled his substance abuse problem.
…
(6.7). What factors have adversely affected [the applicant] in his developmental years?
It is noted that [the applicant’s] developmental years appear to have been adversely affected by the departure of his father from the family unit prior to his birth, and the absence of a father figure for his developmental years.
(6.8). The influence a father can have on his son’s mental development is also seen in how the son conducts himself. Harper and McLanahan (2004) executed a study that explored the relationship between youth incarceration and absent fathers. They found that male adolescents who lived in a home without a father had elevated risks for incarceration when compared with male adolescents who did live with their fathers. Several other factors such as poverty and teen motherhood were controlled but did not account for the elevated level of incarceration in father-absent homes. In a previous study, Mackey and Mackey (2003), produced similar results regarding father absence and violent young men. Father absence was a much stronger predictor of violence in young men than poverty. Any attitude which promotes a maximization of the time a father has with his young son should result in less violent behaviours by the son once he has reached adulthood. The longer a father is present in his son’s life, the less violent the son is likely to be. These studies provide evidence for the importance of the father-son relationship in many aspects of development (Mackey and Mackey, 2003)
(6.9). A father’s influence does not diminish as a child becomes older, as evidenced in the following study. Mandara and Murray (2006)18 assessed the occurrence of adolescent drug use in relation to father absence. They administered a questionnaire to measure several aspects of the participants’ lives including the absence of fathers, socioeconomic status, adolescent drug use, and friends’ drug use. Gender was the main factor that determined the effect of father absence on drug use. A father’s absence did not have an influence on female drug use, but it did influence and was a strong predictor of males’ drug use.
(6.10).The effect of father absence was so strong for males that once it was controlled, the other factors studied did not have a large unique effect. There was a perceived gender difference in the drug use of adolescents with absent fathers that was not present in the father-present adolescents who had an equally low usage rate. When father-absent males were compared with father-absent females and father-present adolescents, father-absent males were found to be more likely to use drugs (Mandara and Murray, 2006). The amount and combination of drugs used was also affected by the presence or absence of a father in this study. All of these results point to the importance of the father-son relationship in the social choices made by adolescents.
…
The Level of Service Inventory- Revised (LSI-R)
The LSI-R is a quantitative survey of attributes of offenders and their situations, designed to provide a comprehensive risk/needs assessment that may assist in offender treatment planning and assigning levels of freedom and supervision. The LSI-R is routinely used by Probation and Parole Services when seeking to determine the individual’s suitability for inclusion in special programmes of a non-custodial nature, and the probable level of supervision the individual will require.
The results of the LSI-R place [the applicant] in the moderate range for overall risk/needs assessment. It is noted that the LSI-R is a combination of static and dynamic factors.
Self-Assessment Questionnaire (SAQ):
The Self-Assessment Questionnaire (SAQ, Loza, 2000) is a self-report questionnaire comprised of 72 statements requiring a true or false response. The statements are marked into six subscales that look at static (unchangeable) and dynamic (changeable) factors. A total score which assigns the individual to a risk category from high to low is calculated.
…
[The applicant’s] results indicate that he falls in the high-moderate range for risk of recidivism. This risk assessment is a compilation of static and dynamic factors for the risk of recidivism.
…
In summary, the following has been noted –
(8.1). It has been noted that [the applicant] has a significant history of substance abuse and criminality. Separate risk assessments administered to [the applicant] indicated that he falls in the moderate or high moderate range overall for the risk of recidivism. Both assessments administered are a combination of static and dynamic factors, and he would be anticipated to score at the higher end of the spectrum because of his criminal history. In other words the greater the number of prior offences, the higher the risk of recidivism.
…
Following the preparation of the report by this author dated 16/1/2024, this author was provided with a copy of the Department of Communities and Justice file, which details previously unknown information in relation to [ZTN].
A copy of the file from DCJ notes that on 1/4/2016, a Risk of Significant Harm report was made in relation to [ZTN] and this related to her telling her mother than there was pain in her genital area. [ZTN] asserted in the ROSH report that her mother’s partner had inserted his fingers. As a result a Safety Plan was initiated and [TTN] subsequently breached this order and the children were eventually removed from her care.
…
The implications for [ZTN] if she does not have her father in her life:
In light of this recent information, it becomes even more important for [ZTN] to have her father in her life for the remainder of her developmental years, and her early adult years. She needs a male figure in her life so that she can feel protected from any further abuse, and so that she can grow into maturity without the fear of what is going to happen. This is an essential basic requirement for someone as they start their trajectory towards maturity. It is also noted that this abuse would also explain why [KTN] appears to the man of the family unit and presents with a maturity far beyond his chronological age.
This author is unable to comment on how this abuse would have impacted [the applicant], as this information was not available when the assessments were conducted. Potentially though it could be construed that his daughter’s sexual abuse may have impacted on his substance abuse problem, with a further escalation in his abuse.
I note the results of the LSI-R which place the applicant in the moderate range for overall risk/needs assessment. I also note the Self-Assessment Questionnaire (SAQ) results that indicate that he falls in the high-moderate range for risk of recidivism.
The applicant’s behaviour in 2020 is especially troubling. Some concession can be made to human frailty for the natural disappointment he felt at the discovery that a child he had bonded with was not his biological child, but this can hardly justify putting the community at risk, especially by his unlicensed driving of motor vehicles. It is hard to avoid the conclusion that his criminal tendencies arise not merely because of his drug habit, but that he has very poor means of coping with life’s disappointments and frustrations. This may be the result of having had no father to guide him in life.
However, his offending must be kept in perspective. His criminal record, although troubling, is far from the most serious encountered by the Tribunal in visa revocation cases. Moreover, there are two additional factors that cannot be underestimated. Firstly, he has lost his liberty for a considerable period because of his offending. He has been deprived of his freedom since 27 May 2021, for the past two years and eight months.[62] He has not consumed drugs during this period and claims that he is finished with that way of life. There is reason to be sceptical about this claim, but it is a step in the right direction. I note that he has previously used a period of incarceration to learn English. And secondly, he has been brought face to face with the grim reality that he may be removed from the country. He understands that if that happens, he will have no physical contact with his children for the foreseeable future, and in all probability, never see his mother again. She is old and unwell and clearly without the means to travel to Vietnam.
[62] G2, 60.
Nevertheless, the parties agree that the protection of the Australian community weigh against revocation of the mandatory cancellation decision. They do not, however, weigh so decisively as to exclude all other considerations.
PART IV - SYNTHESIS
The parties agree that the protection of the Australian Community (PC1), Family violence committed by the non-citizen (PC2) and the Expectations of the Australian community (PC5) weigh against revocation of the mandatory cancellation decision. On the other hand, the strength, nature, and duration of ties to Australia (PC3), best interests of minor children in Australia affected by the decision (PC4) and the extent of impediments (OC2) if removed weigh in favour of revocation of the mandatory cancellation decision.
In the present case there is no evidence of impact on specific victims (OC3) or Australian business interests (OC4).
The Respondent concedes that the best interests of his two biological children favour revocation of the mandatory cancellation decision (PC4). There is clear evidence of a caring and loving bond between the applicant and his two children, and they are desperate to be reunited with their father. The opinion expressed in the psychologist’s report that the children would benefit from the applicant’s presence in their lives, despite his risk of reoffending and drug relapse, is significant.
I also note his ties to the community (PC3). His cousin gave evidence to the Tribunal and spoke of the support she provides to his mother in raising his children. Her willingness to assist in practical matters, such as driving DTT to appointments, is invaluable and constitutes a tangible tie to the community. She helps with administrative tasks. I also note that through her the applicant has a job offer which he intends to take up upon release from immigration detention.
In a letter dated 17 May 2023, a case worker for the Department of Communities and Justice wrote:
This letter is to confirm that both children [KTN] and [ZTN] are placed under the Parental Responsibility of the Minister for the Department of Communities and Justice (DCJ) until they attain the age 18 years of age. They have been placed in the care of their paternal grandmother [DTT] since 1 July 2016 (please see attached court orders).
There is a current open plan for the children at SWS OOHC Hub Liverpool - Department of Communities and Justice (DCJ). DCJ will continue to provide case management responsibilities to support [DTT] to meet the care needs for both children, until they attain the age of 18 years.
[DTT] has been open and engaging well with caseworkers from DCJ and services involved. She has been able to organise and facilities family visits between both children and their mum and dad separately on a regular basis. [DTT] is worried that if their father [the applicant] is not able to reside in Australia the children will not have opportunities see their father and maintain a relationship with him.
His mother DTT stands like a beacon of light in this case. She is the quintessential grandmother, saviour of the family. She has cared for the applicant’s children since 2012. She survives on a shoestring budget. She provided evidence of her social security income and expenditures, which makes for depressing reading. Yet the children are well fed (she proudly describes them as ‘chubby’), well clothed and are doing very well at school. She is now in poor health, in pain, but must soldier on.
On 14 December 2023, the Secretary of the Department of Communities and Justice sought an order rescinding the Care Order made on 7 November 2016 in favour of a Guardianship Order placing the children in DTT’s care until the age of 18 years old.[63] A Guardianship Order was subsequently made by the Children’s Court. At the present time, the children remain in the parental care of DTT, and judging by school reports provided to the Tribunal, are doing well at school.[64]
[63] ATB, 223.
[64] ATB, 17, 206 et seq,
I am satisfied that DTT will be emotionally and psychologically damaged by his removal from the country. There is a significant risk that her role as primary carer of his two young children may be irredeemably damaged. At the age of 71, she suffers from multiple ailments in her old age. The community has a vested interest in supporting her in her heroic endeavour to provide a safe environment for these children. But for her, their lives would have been irreparably damaged by the irresponsible and immature behaviour of their parents. Clearly, they were too young to take on the responsibilities of parenthood.
DTT must be supported in her vital role. Her evidence to the Tribunal was painful and heart-rending. The Tribunal is unable to divorce its reflections from the impact upon her and upon the children of a decision to remove their less than perfect son and father from the country. He is not beyond hope and if he can avoid the siren song of drugs with its inevitable slide towards chaos and criminality, he may yet prove to be a good father.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 8 November 2023 is set aside; and in substitution, the Tribunal decides that the cancellation of the applicant’s Class BC (Subclass 100) Spouse visa under subsection 501(3A) of the Migration Act 1958 (Cth) is revoked under subsection 501CA(4) of the Act.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

............[SGD]............................................................
Associate
Dated: 31 January 2024

Date(s) of hearing: 23 and 24 January 2024

Counsel for the Applicant: Mr B. Zipser

Solicitors for the Applicant: Mr B. Lakhani, Path Migration

Solicitors for the Respondent: Mr A. Gardner, Mills Oakley Lawyers

Date(s) of hearing:	23 and 24 January 2024
Counsel for the Applicant:	Mr B. Zipser
Solicitors for the Applicant:	Mr B. Lakhani, Path Migration
Solicitors for the Respondent:	Mr A. Gardner, Mills Oakley Lawyers