VXKK and Minister for Home Affairs (Migration)

VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268 (6 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3291
Re:VXKK
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:6 September 2018
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the cancellation of VXKK’s Class WE Subclass 050 Bridging E (General) Visa be revoked under s 501CA(4) of the Migration Act 1958 (Cth).
...........................[sgd].............................................
Ms Anna Burke, Member
MIGRATION – non-revocation of mandatory cancellation of visa – 12 month term of imprisonment – applicant does not pass character test in s 501(6)(a) – applicant an unacceptable risk to the Australian community – minor children in Australia – strong ties to Australia – impediments if applicant removed – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth); ss 499, 500, 501, 501CA
Migration Regulations 1994 (Cth); reg 2.52
CASES
Re Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310
Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245
SZTAL v the Minister for Immigration and Border Protection [2017] HCA 34
SECONDARY MATERIAL
United Nations High Commissioner for Refugees, Convention and Protocol relating to the Status of Refugees (1951) (Refugee Convention)
Minister for Immigration and Border Protection (Cth), Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501 CA, 22 December 2014
REASONS FOR DECISION
Ms Anna Burke, Member
6 September 2018
INTRODUCTION

On 1 August 2017 a delegate of the Minister for Home Affairs (the Minister) cancelled VXKK’s Class WE Subclass 050 Bridging E (General) Visa under s 501(3A) of the Migration Act 1958 (the Act). This was a mandatory cancellation as the delegate was satisfied VXKK did not pass the character test because of the operation of s 501(6)(a) on the basis of s 501(7)(c). VXKK was found to have a substantial criminal record by virtue of a 12-month imprisonment term he had received on 16 April 2013 and had served a sentence of imprisonment on a full-time basis at the time. A notice dated 1 August 2017 was sent to VXKK, outlining the mandatory cancellation of his visa and inviting him to make representations to the Minister about the revocation of the mandatory cancellation (see ss 501CA(3)(b) and 501CA(4)(a) of the Act).
On 23 August 2017 and 18 March 2018 VXKK lodged an application under s 501CA(4) seeking revocation of the decision to cancel his visa. On 14 June 2018 a delegate of the Minister made a decision not to revoke the mandatory cancellation of VXKK’s visa on the basis that he did not pass the character test and there was not another reason why the original decision should be revoked. In particular, the delegate found that VXKK represented an unacceptable risk of harm to the Australian community; that the protection of the Australian community outweighs the best interest of his children as a primary consideration and other considerations – his length of residence, his ties to Australia and the hardship he and his family will endure if his visa is cancelled.
On 15 June 2018 the Administrative Appeals Tribunal (the Tribunal) received an application from VXKK under s 500(1)(ba) of the Act, seeking review of the decision to not to revoke the cancellation of his visa. At the time, VXKK was being held at Maribyrnong Immigration Detention Centre and appeared in person at the Tribunal. At the hearing of his application on 27 & 29 August 2018 VXKK was represented by Mr Greg Hughan of counsel, instructed by Ms Kate Fitzgerald of Refugee Legal. Mr Neil Cuthbert, solicitor advocate of Clayton Utz, appeared for the Minister. The Minister lodged a set of paginated G-Documents and the applicant provided a number of written statements to support oral evidence. Documents received under summons from Victoria Police and Corrections Victoria were also accepted into evidence.
BACKGROUND
VXKK is a 34-year-old Timorese national who came to Australia on 21 December 1996 as the holder of a subclass 676 Visitor (short stay) visa valid until 21 January 1997.
VXKK was born in Dili, East Timor, the fourth of six children. When he was about four years of age, his parents separated and the children were sent to live with members of his father’s extended family. Contact with VXKK’s biological mother was irregular from this point, particularly after she remarried an Indonesian police sergeant who was very aggressive towards her children, who often threatened them if they visited their mother. When VXKK was about six, his father entered into a de facto relationship. VXKK returned to live with his father, stepmother, elder brother and younger sister, he formed a very close bond with his stepmother. His two older brothers continued to live with his father’s relatives nearby and visited often. His younger brother remained with their mother.
VXKK’s immediate family experienced firsthand repeated intimidation by the Indonesian authorities in East Timor and his early childhood was greatly impacted upon by the occupation. He often witnessed the brutality and aggression of the Indonesian military in his community, within his own family and home.
VXKK’s elder brothers were part of what has become known as the Santa Cruz massacre, a memorial mass on 12 November 1991 for a pro-independence youth shot by Indonesian troops. Approximately 2,500 demonstrators displayed the Fretlin flag and banners with pro-independence slogans, and reportedly chanted boisterously but peacefully. What followed was a brief confrontation between Indonesian troops and protesters, resulting in 200 Indonesian soldiers opening fire on the crowd killing at least 250 Timorese. A week after the demonstration the Indonesian military visited VXKK’s home in search of his brothers and arrested his father. His brothers surrendered themselves to the police in order to have their father released. They were both detained for several days during which time they were seriously beaten, kicked and interrogated. Following their release the family home was often visited and searched by the Indonesian military. This caused significant levels of intimidation, physical and emotional abuse which led the family to a well-founded fear of persecution and concern for their personal safety.
Following the persistent harassment of the family by the Indonesian authorities, they decided to seek safety in Australia where there were already members of his father’s extended family. The family left East Timor and lived in Jakarta (Indonesia) for approximately two years and then travelled to Australia. VXKK left East Timor when he was 10 years of age and has not returned since.
Part of the family arrived in Australia in 1996: VXKK, his father, stepmother, elder brother and younger sister. His two older brothers and youngest brother remained in East Timor. VXKK has had little contact with his brothers in East Timor over the years, having seen them in person once when they visited Australia. Beyond that he is friends with one of his older brothers on Facebook. VXKK’s father travelled with the family to Australia in 1996 but returned to Indonesia shortly after. He was not reunited with the family for another three years.
VXKK’s early years in Australia were difficult due to the separation from his father and elder brothers; the language barriers; adapting to a new culture and continued uncertainty about the family’s residency status in Australia. In 1997 VXKK’s stepmother applied for a protection visa including VXKK, his elder brother and younger sister as her dependence.
In 1999 VXKK’s father returned to Australia. After his arrival he indicated that his relationship had broken down with their stepmother and he had a new wife who would be joining them shortly in Australia. VXKK’s stepmother left the family home and he felt her loss keenly.
VXKK’s reunion with his father and his new stepmother was not easy. There were many arguments, reports of physical abuse and eventually VXKK was asked to leave the family home. This left him homeless at 16, resulting in a vicious cycle of homelessness and addiction. This led to his offending, which commenced in 2002 with some 12 interactions with the courts and over 60 offences recorded against his name. During this period VXKK has formed two significant romantic relationships which have resulted in the births of his daughter who is now 10 and his son who is one and a half.
VXKK’s migration history
VXKK’s migration history was summarised in his request for revocation of visa cancellation from Refugee Legal dated 18 March 2018:
[VXKK] had applied for protection visa after his arrival in Australia in 1996 but this was not processed until 2003. Although it was recognised that he was a refugee when he fled from East Timor, by the time his visa application was finally determined by the Refugee Review Tribunal, the Indonesian occupation of East Timor had concluded and he was found to no longer be in need of protection. The then Minister for Immigration had agreed he would consider a request under section 417 of the Act from the hundreds of East Timorese who had been living in the Australian community since the 1990s. However, [VXKK] was one of the handful of East Timorese, including his two siblings, whose s417 requests were refused by the Minister. He lodged an application for subclass 832 close ties visa in June 2005. The application was ceased by the cancellation of his subclass 050 visa on 1 August 2017.
On 21 December 1996 VXKK arrived on a Subclass 676 Visitor (short stay) Visa.
On 15 January 1997, VXKK applied for a Protection (Class AZ) visa as a dependent of his step mother, (his stepmother was later granted a permanent residence visa after she separated from VXKK’s father and married an Australian citizen, withdrawing her protection visa).
On 23 May 2003 a delegate of the Minister refuses to grant protection visa.
On 20 November 2003 VXKK applied for a WE-050 (Bridging (General)) Visa and he has been granted a number of these between 13 November 2003 and 7 July 2005.
On 17 June 2003 VXKK appealed the decision not to grant protection visa. On 3 September 2003 the Refugee Review Tribunal affirms the decision to refuse the protection visa stating:
Although the applicants had a well-founded fear of persecution at the time they left East Timor, the Tribunal finds there has been material and substantial change in circumstances. The Tribunal is not satisfied the applicants face a real chance of persecution should they return to East Timor, for reasons related to their ethnicity, imputed political opinion or any other Convention reason. If they remain anxious that they are at risk, the Tribunal reiterates its satisfaction that they can be adequately protected against harm if they seek protection from the East Timorese authorities.
On 27 June 2005 VXKK applied for a Special Eligibility (Residence) (Class AO) (subclass 832) (Close Ties) Visa.
On 10 January 2007 the delegate found VXKK did not pass the character test under
s 501(6)(a) of the Act. However the delegate decided not to exercise the discretion based on information provided and evidence of rehabilitation. At that time VXKK was formally warned that further adverse conduct will again bring him within the scope of section 501.
On 17 May 2008 a delegate of the Minister refused to grant VXKK a permanent Class AO Special Eligibility (Residence) visa because he had not provided evidence for the purposes of health requirements.
On 24 December 2009 the Migration Review Tribunal remitted the application for a Special Eligibility (Residence) (Class AO) (subclass 832) Close Ties Visa for reconsideration with the direction that the applicant meets the health requirements.
On 14 June 2018 VXKK’s Class WE Subclass 050 Bridging E (General) Visa was cancelled.
ISSUES
There are two central issues before the Tribunal in this application for review:
(a)does VXKK pass the character test in s 501(6) of the Act?; and
(b)if VXKK does not pass the character test, should the Tribunal exercise its discretion to revoke the visa cancellation?
LEGAL FRAMEWORK
With regard to the mandatory cancellation of visas, s 501 of the Act relevantly states that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
…
(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)…
...
(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
With regard to the revocation of mandatory cancellations under s 501(3A), s 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information;
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
VXKK has conceded that he does not pass the character test, as he has a substantial criminal record, which leaves the Tribunal to determine whether there is another reason to revoke the visa cancellation under s 501CA(4)(b)(ii) of the Act. It has been determined by North ACJ in Gasper v Minister for Immigration and Border Protection (2016) 153 ALD 338 at 345 that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. ...
If a person is found not to pass the character test, the discretion to refuse the visa must be considered. Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about the performance of those functions or the exercise of those powers. A person or body having those functions or powers, including the Tribunal, must comply with any relevant direction (s 499(2A) of the Act; see also Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J). Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction) is a direction made under s 499 of the Act and provides a guide for decision-makers performing functions or exercising powers under s 501 of the Act (paragraph 6.1(4) of the Direction).
Paragraph 6.1 of the Direction sets out the objectives of the Act and the Direction, stating, in part:
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time 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 his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case
(4)The purpose of this Direction is to guide decision-makers performing functions of exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 sets out General Guidance relating to the Government’s intent:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in… making a revocation decision are identified in Part C of this Direction.
The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Part C of the Direction. Those principles are as follows (paragraph 6.3):
(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)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Paragraph 7(1)(b) of the Direction states that a decision-maker must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a visa should be revoked.
Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
…Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
Paragraph 13(2) outlines the primary considerations under Part C of the Direction:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Other considerations that must be taken into account, where relevant, are outlined in paragraph 14(1) of the Direction. Those considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests
d)Impact on victims;
e)Extent of impediments if removed.
Paragraphs 13.1-13.3 and 14.1-14.5 further elaborate on the primary and other considerations respectively. The relevant portions of those paragraphs are outlined under the CONSIDERATION heading of these reasons for decision. Finally, paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) also states that one or more primary considerations may outweigh other primary considerations.
EVIDENCE
VXKK’s criminal offending
VXKK’s criminal offending commenced in 2002, some six years after he arrived in Australia, when he was 18 years of age and has continued until 2017, his last period of imprisonment from which he was placed in detention. VXKK’s visa was cancelled on the basis of his substantial criminal record, being a 12-month term of imprisonment imposed on 16 April 2013, and that he had served a sentence of imprisonment on a full-time basis. VXKK subsequently served several more terms of imprisonment but these were less than 12 months. VXKK’s significant criminal offending is listed in APPENDIX 1.
On 7 April 2002 at the Highpoint shopping centre, VXKK and two others were involved in an altercation with another male over a car parking spot. The police incident report states nil injuries. VXKK described this incident to Ms Katarina Dietrich, forensic psychologist, in a report dated 28 July 2003. Ms Dietrich recorded the following:
[VXKK] can remember an assault charge that occurred in Highpoint. He explained that the particular offence occurred in the afternoon in a car park with two friends. They were searching for a parking space and when they found one another car drove in and took the space. One of [VXKK]’s friends approached the car and told the driver to move because it was his parking space. The driver of the car was described to the writer as a “really big man in his twenties”. He reportedly “started being a smartass” because he was with his girlfriend and replied by asking his girlfriend “do you want to smoke these guys?” which was interpreted by [VXKK] and his friends as “should we shoot these guys?”. [VXKK] said that he and his friends were very angry and got “metal poles” (a ‘jack’ for changing a tire) from the boot of their car and chased him because “we wanted to teach him a lesson”. [VXKK] said that the girlfriend was screaming and bitching about it and his friend nearly had her but she ran away. The driver of the car also ran away and was not caught by [VXKK] and his co-offenders.
On Sunday 7 July 2002, VXKK and three friends were travelling on the train when they were apprehended by ticketing inspectors for not having valid tickets; three of them received infringement notices for which they were to eventually receive fines from Metro trains. All four of them returned to VXKK’s home where they decided they would commit an armed robbery on the quick convenience store situated nearby. They prepared for the offence and placed balaclavas, clothing, two machetes, a samurai sword into a bag owned by VXKK. A plan was formulated with each person being given a job to do during the armed robbery. Just prior to 10PM all four proceeded on foot to a laneway at the rear of the convenience store and waited a short period to ensure all customers were out of the store leaving the attendant alone. VXKK and two others entered the store, having disguised themselves with balaclavas and armed themselves with the machetes and sword; the fourth stayed outside as a lookout. They confronted the attendant demanding money whilst brandishing the machete and sword. A display at the front of the store was slashed with a machete for effect. One of the co-offenders mounted the counter to confront the attendant who opened the till on demand and retreated to the rear of the office whilst they removed $206.75 from the till. The cash was put in the bag; they then left the store and removed their disguise in the laneway behind. At a nearby intersection a uniformed sergeant patrolling the streets attempted to intercept and speak to all four who ran off, leaving the bag and contents. All four were apprehended and interviewed, making full admissions to the offence, stating that they committed the offence in order to pay for the transits fines they believed they were going to receive. No person was physically injured during this offence. All money was recovered by the police shortly after the offence.
In her sentencing remarks her Honour Judge Sexton states:
It is extraordinary that four young men with no prior criminal history could so casually come to the idea of committing one of the most serious crimes known in this State, and to do so with such a level of planning and sophistication. Each of you covered up your facial features, either by balaclava, bandanna or T-shirt. The three of you who approach the victim at the counter were socks on your hands to prevent fingerprints being left behind. The fourth member remained on lookout duty at the door, and the three of you who approached the victim carried fearsome weapons, being two machetes and a samurai sword.
…
Because of the young age of each of you, rehabilitation is a primary consideration in my sentencing you today. Despite the great seriousness of this offence, you are entitled to have taken into account in your favour all of the features to which I have earlier referred, including your pleas of guilty, your cooperation with the police, your lack of prior convictions and subsequent matters, your good prospects of rehabilitation, and the low likelihood of your re-offending.
…
As a result although it is unusual in the case of a serious am robbery such as this, I have taken the step of having each of you assessed for a community-based order. You have been found suitable. If each of you agrees, you will be convicted and released on a community-based order for two years, with the usual core conditions in certain program can be conditions.
From 23 December 2002 to 3 March 2003, VXKK failed to comply with the conditions of his community-based order, having only performed 8 out of 450 hours of unpaid community work. On 21 May 2003 Judge Sexton found VXKK had breached the order and sentenced him to a period of 18 months in a Youth Training Centre. In her sentencing remarks her Honour stated:
What I have to say to you is that whilst, of course, it is not a good thing that you have over a number of years had your application to stay in Australia hanging, and not decided, that still you’re one of the lucky ones who is here in Australia because we do have ways of dealing with people who have problems. But you have got to take advantage of that, otherwise you will start from here-on in to spend the rest of your life, if you are here in Australia, in and out of gaol. And that is no life for anybody. You might as well be anywhere else in the world.
You have to take advantage of the fact you are one of the ones who has come to Australia, if ultimately you are granted that status. Of course every time you do something wrong you are putting that in jeopardy.
…
I do not think there would be anybody in my position who would not feel desperately the need to deal with your problems because you have come to this country seeking a better life. But if you do not take those opportunities then there will be very little that any of us can do to make that a better life for you, and you will simply be, despite the shocking things that you have witnessed, things that have happened to your family, the brutality that has been in your life, despite all of that you will simply be subject to ongoing court orders, prison sentences, for the rest of your life.
VXKK’s community work was to be undertaken at Brimbank College. He told the Tribunal at the hearing that he was embarrassed by doing the cleaning work at the school as he was the same age roughly as the students. He simply stopped going because he was embarrassed. He stated he was young and hot-headed.
On 29 April 2003 VXKK and three others arranged to meet an individual seeking to purchase heroin at the 7/11 store in St Albans at 11PM. The individual was directed to drive to a nearby street where VXKK and three others demanded his mobile phone and money. During the altercation the individual was hit with a samurai sword and suffered a cut elbow. VXKK was apprehended by the police, charged and appeared in court on 24 June 2004 where in his sentencing remarks, Judge Barrett, stated:
[VXKK] told the police that he started hitting [name]’s car window because [name] was frightened and he wanted to scare [name] to stop arguing and start listening. He said he wanted [name] to give the phone back to [name]. He said he believed that the phone taken from [name] had belonged to [name].
…
I have taken into account your unfortunate background and the matters raised in the reports of Mr Toohey and the psychological report from Miss Katie Dietrich dated 24 July 2003. I accept that you have had a disruptive and unsettled life. I accept for periods of your life you have been forced to cope for yourself with little or no home or parental support and love. It is not surprising that you have fallen into heroin abuse, poor company in criminal behaviour.
You are a refugee whose status has not been settled and in itself must have been very unsettling for you. However I have been told that despite the wealth of this country you have been forced to survive on Red Cross benefits, and you have not been eligible for any government assistance such as Centrelink benefits or other social service benefits. To my mind that is unfortunate.
…
Now, [VXKK], I want you to understand clearly this is surely your last chance of receiving a sentence that you can be detained in a youth training centre…
You have been very lucky to be offered the chance to plead guilty to affray in my mind, but it carries a much lesser sentence than armed robbery. So to that degree the difference between you and [name] is different. You are being let off very leniently. You should bear that in mind.
VXKK advised at the hearing that on this occasion the victim had stolen a phone from him which belong to his boss (the person whom he did favours for) and stated “it was simply me (the victim) or him, the boss wanted the phone back and so I went with the boss and his other associates to get the phone back”. VXKK said he tried to frighten the guy so he would just hand over the phone but the guy would not so it all escalated out of control
On 4 April 2008 the police observed a car facing in a westerly direction in a service lane and they found VXKK slouched forward in the driver’s seat with a small glass pipe on his lap. The police tapped on the window and yelled at VXKK to open the door. When he did they found a sawn off shotgun in the pocket of the driver’s door. The police immediately pulled VXKK out of the car, threw him to the ground and arrested him.
VXKK advised at the hearing that on this occasion the people whom he was working for had asked him to hold on to the weapons. He did whatever they asked. He was taking the weapons home, had fallen asleep in the car when the police found them in his possession.
On 29 July 2009 VXKK was in the Melbourne central business district when he came upon his ex-girlfriend in the company of her new partner. VXKK approached the couple, tapping his ex-girlfriend’s partner on the shoulder and an altercation ensued. VXKK then pushed his ex-girlfriend’s partner up against a car and stabbed him in the stomach with a screwdriver. The victim fled the scene and later presented at St Vincent’s Hospital to seek medical attention for his injuries. VXKK’s ex-girlfriend left the scene with VXKK following, abusing her until she boarded a train. Police records indicate VXKK rang the victim whilst they were interviewing him and a recording of this message was taken.
VXKK advised at the hearing that on this occasion he had come across his former partner Brenda with a guy in the city. He said he told the guy he was the father of Brenda’s child and the guy had laughed at him. VXKK stated he was a mess and he simply lashed out with a screwdriver. He took off because he was afraid of the police and did not want to go back to prison. VXKK stated he called the victim to say he was sorry for stabbing him, to assure him he had not used a syringe but a screwdriver so the victim did not catch any diseases. VXKK said he was feeling OK because the guy had said he was not going to press charges. However, VXKK was later charged, sentenced and sent back to gaol.
On 19 April 2010 VXKK and another male were at the Coles supermarket in Essendon Field where they attempted to leave the store with approximately $200 worth of toothbrushes and beauty products without paying. They were then approached by a security guard. One of them produced a syringe and said “I’ll stab you with it”; the security guard backed off so the group walked away.
On 11 April 2012 VXKK was seen walking and was questioned by police. He started to become nervous and admitted to being a user. Upon further questioning VXKK admitted to being in possession of heroin and sedatives. VXKK advised the police he was on his way home. The police then conducted a search and found a small amount of white powder in a sealed bag. VXKK was arrested and taken for interview where he made full admissions to possession of heroin.
On 10 December 2012 VXKK was shoplifting at the Coles Supermarket in Sunshine Market Place when he was approached by a security guard. He then produced a box cutter and threatened to stab the security guard. As VXKK was trying to escape, a security guard placed his hands on VXKK’s shoulders; VXKK then used the box cutter to slash the guard’s forearm, causing a deep laceration. VXKK then fled with his co-accused in a vehicle and was later identified through a photo taken by a witness at the scene.
VXKK’s final incident before his visa was cancelled was before Magistrate Grubissa in the Sunshine Magistrates’ Court (there were no summons material in respect of this charge). In her sentencing remarks on 6 July 2017 her Honour stated:
…
Her honour: Obviously, there are charges before the court that are of a very serious nature. Your client has significant prior matters and the court made very plain when it was entertaining this matter that the court was not entertaining a community corrections order alone in relation to sentence, that there would be a custodial component of appropriate length and substance to reflect both the matters before the court in combination with your client’s extensive history. So what matters did you finally want to the put to the court for its consideration?
Ms Rolfe: simply too reiterate my submissions in relation to sentence, Your Honour. The seriousness of particularly the matter involving the charge of intentionally causing injury is wholly acknowledged. It’s not resiled from.
Her honour: No, I appreciate that and that has obviously been…
Ms Rolfe: and nor is [VXKK]’s history.
VXKK advised the Tribunal that he had overreacted during this situation and he regretted it, but at the time he thought the next door neighbour who was chasing Ebony (his partner at the time, who was pregnant) into the house was going to seriously hurt her. They were living in a house with many people and on this particular day he could hear Ebony crying out for help. She was being chased in the house by the next door neighbour. He grabbed a pole which he kept in his room that had a knife attached to it and stabbed the neighbour in his back and bottom. After the incident he and Ebony ran from the house and to the hospital to see if she and the baby were okay. When the police arrived at the scene VXKK was not there. He told the Tribunal he was too frightened to talk to the police. He explained that Ebony had confronted the next door neighbour over taking money from the guy whose house they were staying at. The guy was described as having a mental problem and the neighbour kept exploiting him for money. Eventually Ebony had confronted the neighbour about his conduct and that was how the argument occurred which resulted in VXKK stabbing the neighbour.
VXKK told the Tribunal that there were many charges on his National Police Certificate which he simply could not remember. He stated every time he was charged he would turn up to court and plead guilty; he never disagreed with the changes, which were often multiple in relation to one incident. He only pleaded not guilty on one occasion and was found innocent. On this occasion VXKK stated “it was not me robbing the guy that I was accused of robbing it was him robbing me”. VXKK said he was living on the street surviving day-to-day and was often pulled over by the police who searched him, finding weapons and drugs. Fundamentally everything he owned was on his possession all the time as he had no place to leave his belongings. He did carry weapons with him to protect himself on the street as he was of small stature.
VXKK indicated that being arrested, put in jail and youth detention centre provided him with enough to eat and a secure place to sleep. It was often a better alternative than living on the streets. He stated each time he was released from prison he simply had nowhere to go, no way to support himself so he ended up back in the wrong crowd, doing favours to survive and turning to drugs which kept him warm and took away the pain. VXKK said he had no support mechanism back on the streets because he had no access to government services. Therefore he had no assistance to find a job or housing and could not continue his methadone treatment as he simply could not afford it.
During VXKK’s time in prison and detention he has committed no offences or breaches of rules or regulations. Following his last stint in prison he was released on a 12-month community corrections order to follow with 100-hour community work with supervision, compulsory treatment and judicial monitoring conditions.
Oral Evidence
As outlined above, VXKK gave evidence to the Tribunal at the hearing of this matter. Additionally, his father, former partner and brother-in-law all gave evidence at the hearing in support of VXKK. Dr Karen Scally, forensic and clinical neuropsychologist, also provided evidence and was taken through a report she produced following an assessment of VXKK.
VXKK’s father provided evidence to the Tribunal that he would provide accommodation for his son if he was released from detention and allowed to stay in Australia - VXKK had a bed ready and waiting for him. VXKK’s father stated his son was very attentive to him, more attentive than his wife. He was getting along with his son and believes they have a good relationship. He said he had not visited VXKK in detention as he was very busy, working two jobs but had spoken to him on the phone and is updated about how his son was going, from his daugther. He stated he believes his son will remain drug-free as he will have the support of his family. VXKK is on methadone and this will continue as the family will support and fund him until such time as he gains employment and can support himself. VXKK’s father had spoken to both the managers he worked for and they indicated that there would be work ready for VXKK when he was released. VXKK’s father had not mentioned to either manager about his son’s immigration detention and criminal record but had told his boss that his son was currently away on holiday.

VXKK’s father advised the Tribunal that his son would struggle in East Timor if he was deported as there were no family or friends he could rely upon. He stated that sending him to East Timor is like sending him to his death as he would not be able to get access to his methadone; there is no work and he has forgot his Timorese ways. He said that his other sons in East Timor were struggling and that he was providing financial support to them from Australia. He would also have to support VXKK financially if he was deported and this would be an additional burden. He needed VXKK to remain in Australia to support him physically, emotionally and financially as he is getting older and has numerous medical problems.
VXKK’s former partner and mother of his 10-year-old daughter, Brenda, gave evidence at the hearing of the strong, enduring and very close relationship between VXKK and their daughter. She and VXKK had separated when their daughter was about 12 months old, predominantly because of VXKK’s drug use. However she believed it was important for her child to have an ongoing relationship with her father and she had always supported VXKK having access to his daughter. She emphasised that VXKK had wanted to be a part of their daughter’s life and that he had provided financial support over the years when he was able; that whenever she asked for something for their daughter he would provide.
Brenda advised the Tribunal that over the years VXKK and their daughter had had regular contact, with him taking her to the park, out to dinner and shopping - lots of shopping. Their daughter had spent a few nights in the care of VXKK over the years and since he had been in detention they had visited him regularly. Evidence of the visits to the detention centre was tabled. Brenda said she had never taken their daughter to visit VXKK whilst he was in goal as they both agreed this was not an appropriate setting for a small child and they shielded her from this, stating “I did not want her to see her father like that.” However they had regular phone contact and since he has been in detention VXKK and his daughter have spoken on the phone daily, discussing normal stuff that is going on at school and the likes. Their daughter likes visiting her father in detention because she gets to play UNO with both her parents. She said the visits were often very difficult as they could not go outside to play and it was distressing for her daughter when they had to leave.
Brenda despairs at the prospect of VXKK being deported to East Timor as this will have a detrimental impact on their daughter’s already fragile mental health. This would mean their daughter would never see her father again as she would not be able to afford to travel to East Timor, nor get permission from the father of her other child to travel outside Australia.
Brenda described VXKK as a kind man who had always put other people first, and whilst he has done bad things in the past he is not a bad person. She believes he has really changed and if allowed to stay in Australia, he will not fall back into his drug use or criminal ways. Brenda advised the Tribunal that she would be incredibly appreciative of VXKK being able to stay in Australia as he provides financial support to herself and their daughter of which she was currently greatly in need as she is unable to work because she is caring for her children and has unstable accommodation. Additionally the emotional support he provides their daughter is immense. Following the recent incident in school with the knife, she despairs that if VXKK were not able to remain in Australia it would have a significant and detrimental impact upon their daughter.
VXKK’s brother-in-law advised the Tribunal that he had known VXKK for many years, and had always found him to be a good person, a good citizen, fun to be around and that circumstances had gotten him into trouble. He said he had previously shared a house with VXKK and would have no difficulty with VXKK returning to VXKK’s father’s home where they all currently live, including his infant son. He stated the family would be traumatised if VXKK had to return to East Timor, most particular his partner, VXKK’s younger sister, as they are extremely close. He stated the family would support VXKK in Australia by assisting him with the cost of his methadone, providing accommodation and helping him get work. He believed VXKK would struggle in East Timor as he would not be able to access his methadone treatment, there were high rates of unemployment and VXKK would have no support network in East Timor.
CONSIDERATION
Protection of the Australian community
Paragraph 13.1 of the Direction elaborates on the concept of the protection of the Australian community. It provides that:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle 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. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(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
Paragraph 13.1.1 of the Direction relevantly 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 factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
…
The respondent contends that VXKK’s criminal history reveals a consistent pattern of contraventions and a total disregard for Australian laws. Between November 2002 and July 2017, a period of over 14 years, VXKK has appeared before a court on at least 12 separate occasions in relation to over 60 criminal charges. These findings of guilt and convictions include:
·violent offences, including assault, assault with weapons, common law assault, intentionally cause injury, affray, threat to inflict serious injury;
·drug offences, including trafficking heroin, trafficking methamphetamine, possess heroine, possess methamphetamine, possess cannabis;
·offences involving weapons, including assault with weapons, armed robbery, carry prohibited weapon without license/exemption/approval, armed with firearms of criminal intent, possess unregistered firearm, use controlled weapons without excuse, possess general category handgun, possess ammunition without license, possess cartridge ammunition without license/permit;
·breach offences, including indictable offence while on bail, contravene suspended sentence order, failure to comply with community-based orders, and failure to answer bail;
·dishonesty offences, including armed robbery, theft, theft from shop, dishonestly receive stolen goods, attempted theft of motor vehicle, go equipped to steal/cheat, possess money being proceeds of crime; and
·public nuisance offences, including loitering with intent to commit indictable offences, unlawfully on premises/precinct, possess dangerous article in public place.
The respondent strenuously contended, given VXKK’s prolific history of violent offences and multiple dishonesty offences, that the risk to the Australian community should he engage in further offending is patently serious. This was evidenced by the range of custodial sentences the courts have imposed on VXKK, which include imprisonment on numerous occasions (bearing in mind that in the hierarchy of sentencing, imprisonment is a measure of last resort). For these reasons the respondent contends that the sustained nature and seriousness of his offending weighs heavily in favour of the Tribunal exercising its discretion to affirm the original decision.
VXKK’s counsel indicated that VXKK does not dispute that his offending was very serious, often involving violence and use of weapons. Whilst not militating against the seriousness of his offending, counsel contended it should be viewed in the context of his background and most particularly his homelessness and substance abuse. Fundamentally VXKK’s offending was a direct consequence of his drug use, which arose from his homelessness.
Additional VXKK’s 22 years of uncertain visa status has compounded his plight, leaving him in a continual state of stress about his residential status. Counsel contented while there was no blame to be place on anyone in respect of this matter, it is a factor which has complicated this already difficult picture. Counsel indicated that VXKK’s immigration status has never been resolved; he has been on continuing bridging visas for the majority of his time in Australia, which has denied him access to essential services such as Centrelink and Medicare.
VXKK in his statement of March 2018 wrote:
I am not making excuses for my offending but I have really struggled with my drug addiction. When I was living on the streets, the only way I could cope was by using drugs so that I didn’t care about myself and I didn’t get frightened about being on the streets at night.
With my criminal record and drug addiction, it was very hard to get work. I couldn’t get income from Centrelink as I didn’t have a permanent visa and I couldn’t get a Medicare card. I felt very bad and fed up with everything. I was homeless and the only people who would welcome me into their home were other drug addicts.
Most of my offending occurred when I was on the streets and taking drugs. I was trying to support my life and defend myself. I wasn’t thinking straight because of the drugs. In prison at least I got food and had somewhere to sleep but when I was released each time I had nowhere to go and no way to support myself so that I ended back with the crowd that I know doing favours for favours. Without a Medicare card, I could not afford to keep on with methadone as I had no money to pay for doctors.
VXKK has persistently disregarded Australia’s laws and his lengthy offending history since 2002 is objectively serious.
Risk to the Australian Community
Paragraph 13.1.2 of the Direction relevantly provides:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The respondent argued that VXKK’s pattern of offending showed an escalation in the nature and seriousness of his conduct, as well as a persistent failure to manage his own behaviour. The respondent contended that VXKK presents a high risk of reoffending and an unacceptable risk to the Australian community, as demonstrated by:
·his serious criminal history;
·his continued reoffending despite being sentenced to numerous terms of imprisonment;
·his breach of various community-based orders and bail;
·his previous attempts at rehabilitation have been unsuccessful; and
·the threat of visa refusal or cancellation have not deter his offending conduct.
Counsel for VXKK argued that he did not pose an unacceptable risk of harm to individuals, groups or institutions in the Australian community and that whilst his conduct had been serious it needed to be framed within the context of his addiction and homelessness. The majority of this offending had related to his drug addiction and since being imprisoned he has been drug-free. Counsel further contended that the prolonged and continuing lack of certainty over his future had severely impacted his ability to overcome his substance abuse which inexorably led to his criminal offending.
Ms Katarina Dietrich, forensic psychologist, prepared a report dated 28 July 2003 for Judge Sexton in Her Honour’s determination of VXXK’s breach of his community order in respect of the armed robbery charge in 2002. In that she states:
… [VXKK] has not been able to remember committing the majority of the offences that he has been charged with. By his own admission, this is as a result of his consumption of large quantities of illicit substance at the time. He describes himself as being “in my own world… My mind wasn’t all there…. I was thinking about drugs”. However it is of paramount importance to note that in all discussions about his offences, [VXKK]’s attitude has been one of acceptance in that he has never denied committing any offence that he has been charged with.
…
A lack of accommodation and periods of being homeless are other high risk factors that could lend to [VXKK] reoffending. The majority of his offending behaviour as occurred whilst [VXKK] was homeless and did not have a stable environment to return to each night.
Finally, [VXKK]’s lack of stable family support, and inability to access many services available to many others, places him at risk of reoffending.
Dr Karen Scally, forensic and clinical neuropsychologist, appeared as an expert witness for VXKK, having been asked to address the likelihood of VXKK’s further criminal offending. In her submission she outlined the psychological testing she had conducted on VXKK, which had resulted in findings that VXKK was found to have:
significant levels of psychopathology including ingrained maladaptive depression, dependent and negativistic personality traits, severe anxiety and moderate levels of bipolar disorder and PTSD symptomology. Interestingly his responses on psychological testing were not indicative of issues with drug dependence and this could reflect a bias toward underreporting due to his prolonged abstinence and commencement of the methadone program while in custody. Despite this, it is considered to be a significant contributing factor to his pattern of offending behaviour and remains a major treatment target in his rehabilitation. It should be noted that apart from counselling focused on his asylum seeker needs and brief drug and alcohol counselling [VXKK] has not had the benefit of treatment by a clinical psychologist for his significant mental health issues which are the manifestation of his unstable upbringing characterised by exposure to trauma, loss, upheaval and lack of stable parental attachment. As a result, [VXKK] has sought a sense of belonging with negative peers and used drugs as a coping mechanism to augment his negative emotions. It is my opinion that [VXKK]’s lack of stability and security in his upbringing and development of ingrained maladaptive traits has predisposed him to an institutionalised mindset in which he prefers the predictability and security of confinement to uncertainty and homelessness he experiences with freedom in the community. Indeed [VXKK] flourished in the high level of structure and nurturing support provided to him within the youth justice system. He has also successfully refrained from drug use and criminal activity for a prolonged period in the community when he had adequate employment and relative stable accommodation. However, without psychological intervention he has been unable to sustain this. With adequate treatment of his mental health needs by a clinical psychologist and the ongoing support of his family it is possible for [VXKK] to make further gains in his rehabilitation and reduce his recidivism risk which is presently rated as high.
Dr Scally advised the Tribunal that VXKK was more likely to reoffend than not; however she was cautiously optimistic as long as there were supports in place to assist him. She opined that fundamentally he was not at risk of reoffending if he had the appropriate level of family support, continued with his methadone program, had stable housing and employment. She stated that as long as these factors are in place he could reduce the risk of reoffending.
Counsel for VXKK spoke of the scaffolding that is now in place to support VXKK if he was to be released back into the Australian community. Counsel contended that he would have stable housing provided by his family; that he would have his family support; that he would have the formalised institutional supervision of the community corrections order which was still in operation since his last incarceration; that he is on the methadone program which he would be able to continue to afford with the support of his family and that he has the desire to be a good role model and father to his children. Finally the threat of deportation is the greatest motivator for him to remain drug-free.
The representative for the respondent argued that the scenario in which VXKK would not reoffend will need such a holistic level of support that it is unrealistic. Additionally his troubled relationship with his father in the past would more than likely become a problem in the future and this consideration weighs heavily against VXKK being afforded the privilege of remaining in Australia.
Counsel for VXKK strenuously argued “the future should not just be guided by the past”, that VXKK is now strongly motivated to stay drug-free and that he poses an acceptable risk of harm to the Australian community.
In assessing the competing views relating to VXKK’s risk of reoffending, the Tribunal acknowledges that a person who has committed offences always presents some risk of re-offending, as the psychological testing by Dr Scally reinforced. VXKK’s offences were committed during a period of great personal turmoil while he was influenced by his drug addiction. However his offending has continued, except for a short period between 2004 and 2008, for 15 years, and did not abate when he was placed under intervention orders, community correction orders, bail or after his first period of imprisonment.
Whilst the Australian community expects that people will be given a chance to redeem themselves and that prison offers a chance for rehabilitation, they have a low tolerance for individuals who show no respect for our laws and values. VXKK has shown exemplary behaviour since being in prison and detention, undertaking numerous training and rehabilitation courses but has not had the opportunity to be tested in the wider community. On one hand, it does appear VXKK has matured and poses a low risk of reoffending, but on the other hand, his record of reoffending speaks for itself. There is a conflicting position in respect of VXKK’s prospect of reoffending and as such the risk to the Australian community of his likelihood to reoffend is substantial.

Having regard to the nature and seriousness of VXKK’s conduct as well as the significant risk he poses to the Australian community should he re-offend, the primary consideration of the protection of the Australian community weighs against revoking the mandatory cancellation decision.
Best interests of minor children in Australia affected by the decision
Paragraph 13.2 of the Direction relevantly provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child, or would be, under 18 years old at the time when the decision to revoke or not to revoke the mandatory cancellation decision 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);
…
The respondent accepts that it is in the best interests of VXKK’s two minor children for him to remain in Australia. However they argued the weight that the Tribunal places on this consideration should be tempered by the following:
·his daughter who is now 10 is in the full-time care of her mother;
·VXKK by his own admission has not had day-to-day responsibility for his daughter’s upbringing for a number of years;
·the child’s mother advised the Tribunal that VXKK was not a positive role model for their daughter;
·VXKK has not met his son;
·he has provided no day-to-day care for his son;
·there is no evidence that VXKK will provide day-to-day care of his son if released from detention; and
·his son is in the full-time care of the child’s maternal aunt.
Both the respondent and counsel for VXKK drew the Tribunal's attention to the delegate’s decision to not revoke VXKK’ visa cancellation of 14 June 2018 in which he found:
that it is in the best interest of [VXKK]’s daughter [name] that I revoke the original decision to cancel [VXKK]’s Visa to allow her to continue having a direct and personal relationship with her father and for [VXKK] to continue providing for her with emotional, financial and practical support and care. However I have given somewhat reduced weight to this consideration as [name] has other stable care arrangements in place.
…
…that it is in the best interests of [VXKK]’s son [name] that I revoke the original decision to cancel [VXKK]’s Visa to allow him the opportunity to establish a direct and personal relationship with his father and for [VXKK] to have the prospect of providing him with emotional, financial and practical support and care in the near future. I give somewhat reduced weight to this consideration in light of the fact that available information indicates that [name] has been placed in the care of his maternal aunt, meaning that his existing care arrangements should not be disturbed by the non-revocation of [VXKK]’s Visa.
Counsel for VXKK argued strongly that the evidence indicated that the best interest of his daughter was to have her father physically present in her life and if she was deprived of her much loved father, she would suffer immeasurable harm and grief which would have a lasting and far-reaching consequences as she grows into adulthood. Counsel took the Tribunal to the letter from the Royal Children’s Hospital mental health clinic where VXKK’s daughter is currently receiving treatment, post an incident at school where she took a knife to school and told other students she was going to use it to kill herself and kill another student in the classroom. The Royal Children’s Hospital report states:
[name]… currently displays symptoms of anxiety, affect dysregulation, self-harm and sleep disturbance…
We know from experience and research that separation from a care giver such as a parent can have negative effects on a child’s mental health and should be considered in this circumstance. In the brief time I have spent with [name] she has made comment that she enjoys spending time with her father.
Counsel also took the Tribunal to a detainee request form from VXKK where he states:
Please officers I’m begging you to approve this request. My request is for a birthday cake to be allowed in at my visit day. My visit day will be on… And this is also my daughter’s birthday so I ask to let them bring the cake in so we can cut the [sic] and have the cake together. Please Officer I am grateful and appreciated can allow it. Thank you so much officers. Please I’m begging you. Please officer I would like to have the cake together and celebrate her birthday as a family. Thank you again and please again.
Counsel for VXKK indicated that he greatly desires to form a bond with his son, whom he has not met as he was born after VXKK’s imprisonment. VXKK advised the Tribunal that he was seeking to gain access to his son and that he would, upon release from detention, commence proceedings in the court. He indicated that he had come from a broken home himself and did not want his children to suffer as he had and that he wanted to be there as a father for them. His former partner had indicated doubt about the paternity of his son but VXKK said he was willing to undertake a DNA test because he firmly believed the child was his, as they had been in a relationship when she became pregnant. Counsel submitted that it was clearly in the best interests of his son for VXKK to remain in Australia so they could establish a relationship. According to counsel, this would not be possible if VXKK’s visa was revoked and he was returned to East Timor. This would effectively mean he would have no relationship with his son.
The Tribunal accepts it is in the best interests of VXKK’s children for his visa cancellation to be revoked. It was evident to the Tribunal that VXKK has a strong and loving bond with his daughter and if his daughter was deprived of his presence in Australia, she would suffer immeasurable harm and grief. VXKK advised the Tribunal the reason he was turning his life around was because his daughter was his world. Now that she was 10 years old she understood a lot and can see a lot, he did not want her to grow up seeing him taking drugs and did not want drugs to ruin her life as well. The only way he could make sure she did not use drugs like he had was to set a good example for her. He could only do that if he could remain in Australia and stay clean on the methadone program. The Tribunal enquired why it had taken until now when his daughter was 10 for this realisation to occur. He said she now understood things, he was a hard-headed person and he had woken up too late.
Whilst VXKK has had no contact with his son since his imprisonment, this has not undermined or deterred his resolve to be a good father to his son. VXKK stated at the hearing that he had sought to establish contact with his son but this had not been facilitated by the Department of Human Services, who have intervened in his son’s care. He had been attempting to get legal aid to assist him with finding and maintaining contact with his son. VXKK stated if allowed back into the Australian community he would make every endeavour to ensure he was again part of his son’s life.
VXKK’s sister, to whom he is very close, has had her first child since VXKK was imprisoned. Whilst VXKK has not met the child, as he does not think it appropriate for him to be brought to the detention centre, he nevertheless expresses a desire to be part of his nephew’s life. He inquires often of his nephew’s well-being. VXKK’s sister wants her child to know his uncle as he is a valued member of the family, and will be a good role model for her son. However if he has to leave Australia and return to East Timor, he will have no meaningful contact with his nephew. The Tribunal places less weight on this relationship as the child has his mother and father as primary caregivers.
The Tribunal accepts that should VXKK be removed from Australia he would lose any hope of meaningful contact with his children and his nephew. The evidence supports a finding that the primary consideration of best interest of minor children weighs heavily in favour of revocation of the cancellation of VXKK’s visa under s 501CA(4) of the Act.
Expectations of the Australian community
Paragraph 13.3 of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Minister strongly contended that the Australian community would expect VXKK not to be given the right to remain in Australia. The respondent highlighted that the community rightly expects non-citizens to obey the laws of Australia and respect their institutions. It was submitted that VXKK’s history of serious and repeated offending was fundamentally incompatible with the values and expectations of the Australian community. The respondent contended that while the Australian community may show greater tolerance to a person who arrived in Australia as a young person, that tolerance is not boundless. The Minister submitted the Australian community will be of the view that VXKK’s visa should be cancelled given the nature, seriousness and impact of his criminal conduct and his lack of respect for our judicial institutions.
Counsel for VXKK argued that members of the community, apprised of the facts of this case, may not expect cancellation of VXKK’s visa, particularly given that he arrived in Australia at a young age and has now lived here for more than half his life. It was also necessary to consider the devastating impact his removal will have on his family and minor children. Additionally the significant impediments to his returning to East Timor and his right of protection from Australia are also relevant considerations.
However, this had to be tempered by the fact VXKK has caused serious harm to members of the community, through his use and dealing in drugs. Reliance is placed on the view expressed by Deputy President Block in regard to the term expectations of the Australian community (as it appeared in an earlier Ministerial Direction) in Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7]:
It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into the Australian community, knowledge of the evidence before me. …
In the more recent decision of Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999, Deputy President Forgie noted that determining the expectations of the Australian community is “…ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence…” (at [72]). In assessing the expectations of the Australian community, regard should also be had to the principles in paragraph 6.3 of the Direction as they reflect community values and standards (paragraph 6.2(1)).
Counsel for VXKK referred the Tribunal to Re Ayache and Minister for Immigration and Border Protection (Migration) [2018] AATA 310 to explore the proposition that the Tribunal should have regard to the expectations of the Australian community Deputy President Forgie states:
70. In view of these principles, it seems to me that I should be guided by the words of paragraph 11.3 in the immediate context of Direction No. 65 and in the broader context of s 501(1). When that is done, there can be no inevitable outcome. That said, how are the expectations of the Australian community to be evaluated? This was addressed by the Tribunal in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship:
“ Relevant community values will not depend on transient or fashionable thinking. They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings. They will not necessarily reflect the views of individual politicians. Community standards will be found in more permanent values. They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making. Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect ‘a broad consensus of opinion’ (Mason, Courts and Public Opinion at 36). Decisions will also be informed by the decision-maker’s belief based on experience. Evidence will rarely be of any practical assistance.
It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence. Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities. They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.
Drawing on these considerations, even without detailed analysis of them, in reasons for decision, will lead to better formed judgments which more truly reflect community standards. An assessment expressed to be guided by community standards or values, without more, will still be likely to lead to better decision-making than if no attempt at such an assessment is made. Expressing an opinion that current community standards require a particular outcome will be likely to represent a better decision than one couched in personal terms. Such an approach will sometimes lend itself to reasons. Where there are no reasons, however, the decision and the basis for it will still be better expressed than with reasons couched in personal belief.”
71. Although I respectfully suggest that it is implicit in the passage, I think that it should be expressly stated that the task described by the Tribunal is carried out in the context of, in this case, making a decision under s 501(1) of the Migration Act. Therefore, s 501(1) becomes the starting point for identifying those of the Australian community’s expectations that will be relevant. It is the starting point because a decision-maker is under an obligation first to determine the limits of a discretionary power by reference to the subject-matter, scope and purpose of the legislation granting the power to make that discretionary decision. In other words:
“... the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. ...”
72. The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.
73. Consistently with the Migration Act, the heart of the Direction is the protection of the Australian community and its institutions. That is reflected in the considerations set out by the Minister for decision-makers exercising one of the three types of discretion dealt with more fully in Parts A, B and C. It is also reflected in paragraph 6 of the Direction when it sets out the Objectives, General Guidance and Principles all of which underpin the exercise of the particular discretions that are the subject of Parts A, B and C. It is to this paragraph that regard is to be had in determining the matters that underpin and inform paragraph 11.3 when it addresses the expectations of the Australian community in the context of considering whether to exercise the power to refuse a visa. In particular, it underpins and informs when it may be appropriate to revoke the mandatory visa cancellation or when the Australian community would expect that the person should not hold a visa.
The Direction at paragraph 6.3 clearly states 'Australians may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.' This needs to be balanced against the sustained and serious nature of VXKK’s offending, which commenced when he was in his teenage years and has continued for approximately 15 years to date. The evidence supports a finding that the primary consideration of expectations of the Australian community weighs heavily in favour of not revoking the cancellation VXKK’s visa under s 501CA(4) of the Act.
International non-refoulement obligations
Paragraph 14.1 of the Direction provides as follows in relation to Australia’s non-refoulement obligations (emphasis added):
(1)      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 reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)       The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.

The respondent contended that Australia does not owe VXKK non-refoulement obligations because the risk VXKK would be exposed to if returned to East Timor, such as lack of access to methadone and homelessness, was not based on his individual exposure to that risk. This consideration is therefore deemed not to be engaged. In support of this proposition, the respondent drew the Tribunal’s attention to the Federal Court of Australia decision in SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 where Judge Rares stated:
In my opinion, the natural and ordinary meaning of the exception in s36(2B)(c) is that, if the Minister, or decision-maker, was satisfied that the risk was faced by the population of the country generally, as opposed to the individual claiming complimentary protection based on his or her individual exposure is that risk, the protection of s36(2)(aa) was deemed not to be engaged
Here the risks faced by the population of Sri Lanka generally was that if it citizens broke the law, they became liable to such penalties as the law applied to the relevant contravention. Every citizen who broke such a law necessarily faced a risk personally that the consequences of such an infraction will be applied to him or her by law. But that was not different to risk faced by the population of the country generally. Ordinarily, citizens or persons present in any nation state are bound by the system of law applied by that state, and become subject to the penalties entailed by that law when they break it.
Counsel for VXKK argued that under Article 33 of the Refugee Convention, Australia was prohibited from expelling or refouling refugees to a place in which he or she faces persecution. A refugee is defined as a person who has a well-founded fear of persecution in their home country by reason of their race, religion, nationality, political opinion or membership of a particular social group. Counsel argued VXKK was owed protection by his membership of various particular social groups, namely drug users and homeless persons in East Timor. Counsel contended that, based on the country information submitted, from both the Timor-Leste 2017 Human Rights Report from the United States Department of State and the Australian Government Department of Home Affairs, there was a real chance that VXKK would be subject to inhumane prison conditions and/or physical abuse. According to counsel, VXKK would also suffer cruel or inhumane treatment on the basis of his inability to access a methadone program. VXKK is a longtime drug user who is currently on methadone and it was submitted that the lack of specialised drug treatment facilities in East Timor meant that Australia owed him complimentary protection. Fundamentally the applicant’s argument is that if VXKK were to be returned to East Timor, he will be exposed to mistreatment and abuse in prison because he will return to drugs and crime and he would not have access to alcohol and drug treatment in East Timor.
This situation is compounded by the fact that the Refugee Review Tribunal in 2003 found that VXKK was a refugee when he fled East Timor and arrived in Australia in 1996. However by the time his case was determined, the situation in East Timor had changed and he was no longer in need of protection.
The respondent argued that in relation to the provisions of the complimentary protection regime in the Act offering protection for a non-citizen, the Minister must have substantial grounds for believing that that person will be at risk of significant harm. Such harm must be “intentionally” caused or inflicted. The respondent’s representative argued that there was no evidence that the Timorese authorities would intentionally inflict harm on one of their own citizens. Therefore, as outlined in the High Court of Australia’s decision in SZTAL v the Minister for Immigration and Border Protection [2017] HCA 34, complimentary protection was not owed to VXKK and therefore issues of non-refoulement were not enlivened. The respondent’s representative contended that the issues outlined the by counsel for the applicant were matters related to the extent of impediments if VXKK was removed from Australia.
The Tribunal was troubled by the failure of the Australian migration system to deal with VXKK’s situation for his 22 years in Australia. This placed him in the precarious situation of never resolving his visa status and leaving him languishing on numerous bridging visas without access to vital services in this country. This situation was compounded by his chaotic family situation. His original sponsor (first stepmother), who had been asked to leave the family home by his father, no longer required a protection visa for herself. This left her three stepchildren in this precarious situation. Tragically VXKK’s substantive visa situation remains unresolved until this day.
Whilst VXKK will certainly face considerable challenges which may indeed cause harm and trauma if he is returned to East Timor, the Tribunal finds that Australia does not owe him a non-refoulement obligation and therefore this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties to Australia
Paragraph 14.2 of the Direction provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
VXKK has significant ties to the Australian community in the form of his immediate and extended family. Having arrived here as a 13-year-old, he has spent the majority of his life in this country and has not returned to East Timor since he was 10. Whilst his mother and brothers live in East Timor, he has had little contact with them over the years. In respect of his mother, he advised the Tribunal he has no desire to have anything to do with her. Most particularly, VXKK’s two children are Australian citizens and are a significant tie for him to the country.
Counsel for VXKK argued that non-revocation of his visa will have a detrimental impact upon his immediate family. He will not be able to provide financial, emotional or physical support to his former partner and the raising of the child, particularly given his daughter’s mental health issues and his former partner’s precarious housing situation. His father testified that he needed his son to remain in Australia as he is getting older and has significant health issues which require his son’s financial and physical support. His sister’s partner testified that VXKK’s removal from Australia would have a devastating impact upon the family, most particularly his sister who is very close to him and she would suffer extreme grief if they had to be parted. VXKK’s family indicated it would be extremely difficult for any of them to travel to East Timor to visit VXKK, as they simple did not have the economic means.
The respondent argued there was little evidence that VXKK had contributed in a positive way to the Australian community, and that whilst the family ties may contribute in favour of this consideration, they were significantly outweighed by primary considerations one and three. This consideration therefore carries very little weight in respect of the decision to revoke cancellation of VXKK’s Visa.
VXKK disputed that he had not contributed to the Australian community. He argued that he had been employed at various times; that he had undertaken numerous training courses to gain skills which would benefit the community, participated in a number of speaking opportunities at the Police Academy for recruits and was a loving, supportive father, son, and brother to his extended family.
VXKK’s father wrote:
It would have a huge impact on my family and myself if [VXKK] was returned to Timor. I am getting old and have a number of illnesses. I need [VXKK] around to help me. I know that [his sister] will be devastated as will [his children]
VXKK’s ex-partner wrote:
I know that once [VXKK] gets out he could really help out. He could support us financially and would get to have quality time with [our daughter]. We haven’t decided the exact custody arrangements but I would want him to have contact with her and overnight contact as well. Having [VXKK] around to take care of [our daughter] and provide some financial support would make such a difference for me.
For about the last year, I’ve been struggling with our housing and have been moving between friend’s houses. It’s just really tough having to do this with small children. I think I am on a waiting list for a house or to meet with a property manager - I’m not sure.
If [VXKK] was in the community I’d have more time to look for a house and think about getting a job as well.
I have no idea how I would explain to [our daughter] that [VXKK] had been deported - I can’t even begin to imagine the right words to tell her. It would be so hard on [her] if she couldn’t see her dad. I’m really worried about the impact that would have one [sic] her. I am already worried about her mental health and I worry that [VXKK] being removed from Australia would be too much for [her] to handle. It would break my heart to see [her] upset.
VXKK has long and enduring ties with Australia and it is clearly in VXKK’s family and former partner’s interest that he remains in Australia. It is evident by the numerous statements from his family members that VXKK is considered a significant contributor to the family and his removal from Australia will cause considerable distress. Therefore this consideration weighs heavily in favour of revoking the decision to cancel VXKK’s visa under s 501CA(4) of the Act.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The respondent argued this consideration was not enlivened by the evidence before the Tribunal, as VXKK is not involved in the delivery of a major project or delivering an important service in Australia, nor has he ever been.
VXKK advised the Tribunal that prior to his incarceration he had always taken whatever employment he could find to provide for himself and his family. He stated he paid his taxes and that he would take any job he could so he could support himself and his family. His father had secured employment for him and he wants to get on his feet so he can find a home for his children to come and spend time with him.
In light of the evidence, there will be no impact upon business interests in Australia should VXKK’s visa cancellation not be revoked. This consideration has no bearing upon the consideration of revoking the cancellation of VXKK’s visa under s 501CA(4)of the Act.
Impact on victims
Paragraph 14.4(1) of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behavior, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The respondent indicated there was no direct evidence of the impact of a decision not to revoke the original decision on the victims of VXKK’s criminal offenses. However it was noted that the totality of his offences has caused significant and substantial harm, therefore this consideration does not favour VXKK.
VXKK advised the Tribunal that he was very sorry that he had hurt other people. He emphasised that he could not change what he had done, that he was ashamed of his actions and how his life had been, that he was sick of that life, hated it and wanted to change.
There is no evidence, one way or the other, that identifies what effect, if any, the revocation of the cancellation of VXKK’s visa would have on the victims of his numerous offences. Therefore the Tribunal finds there would be no impact in a practical sense on the victims and that this consideration has no bearing upon consideration of revoking the cancellation of VXKK’s visa under s 501CA(4) of the Act.
Extent of impediments if removed
Paragraph 14.5 of the Direction provides that the Tribunal should give consideration to:
(1)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.
Counsel for VXKK argued that he would face insurmountable impediments if he was forced to return to East Timor. Returning to East Timor would cause him significant harm as he would have no access to methadone and would suffer terribly from withdrawal. He would most likely return to drug use without support, revert to crime and face the risk of intolerable conditions in the East Timorese prison system. Additionally counsel argued he would struggle to survive as he would have no housing, no prospects of employment given the significant rate of unemployment in the country and his understanding of Tetum is rusty at best.
Counsel also argued that VXKK has lived the majority of his life in Australia. He left East Timor when he was a child. His lasting memories are of the country under Indonesian occupation where his family suffered intimidation and threats from officials. This would cause him significant trauma as he his return to East Timor would bring back memories of this traumatic time in his life.
It was argued VXKK’s mother who lives in East Timor would provide no support as she only contacted the family when she herself was in need of money. His brothers in East Timor would likewise be unable to provide assistance with housing and finding a job as they are all currently dependent on financial support from his father in Australia.
VXKK does speak Indonesian. He is young and has skills, most particularly English language which would be of benefit to East Timor but he would undoubtedly face significant cultural/linguistic barriers. He would also lack social, medical and economic support which is currently available to him in Australia.
Dr Scally in her report to the Tribunal stated:
Should [VXKK] be deported to East Timor it is likely that he will suffer a significant deterioration in his mental state and be vulnerable to homelessness, poverty and drug abuse due to lack of social supports and access to adequate medication and treatment.
The respondent’s representative contended that as he had three brothers and his mother living in Timor, this lessens the extent of impediment he would face on his return to East Timor.
The Tribunal accepts that VXKK will suffer significant impediments if removed from Australia and not permitted to return, particularly the loss of connection to his family and children. There was significant evidence that he would struggle to establish himself back in East Timor. VXKK will need specialised drug rehabilitation support, physiological counselling to deal with his mental health conditions and to find housing and a job in a country that is still trying to find its feet post-independence. This paints a grim picture for VXKK if he was to be returned to a country he left 24 years ago and to which he has never returned. This consideration weighs heavily in favour of revoking the cancellation of VXKK’s visa under s 501CA(4) of the Act.
CONCLUSION
Having regard to all of these matters, the Tribunal decides that the decision of the delegate of the Minister should be set aside. In reaching that decision, the Tribunal acknowledges that VXKK has found life very difficult. His feelings of being abandoned as a child by his mother, then the separation from his father and loss of his stepmother (his only real mother figure), compounded by the upheaval in his homeland following the invasion and occupation by Indonesia and his difficulty adapting to life in Australia have influenced his life in an unfortunate way, spiralling into homelessness and drug use as he tried to escape these difficulties. By his own admission, he has been slow to learn and

hard-headed. He has been offered many chances to curb his ways to ensure he can remain in Australia but has ignored all the past warnings about the consequences of his actions.
VXKK’s family and former partner attest that he is a changed man who, if allowed to stay in Australia, will make a positive contribution to his adopted country. He told the Tribunal he wants a job so he can earn money to provide for himself and his family.
Although there is no evidence to suggest that he has committed any disciplinary offences since his incarceration and immigration detention, the Tribunal is mindful that he has not been re-tested in the community, where he has to make choices and decide a course of action for himself. In the past he has not learnt from his interaction with the police or the correctional system.
He asked the Tribunal to give him one more chance, to give him the help he needs to turn his life around to become a better person. He told the Tribunal he was excited to be placed on the CCO as it would give him the support he needed to finally end his drug habit. His desire is to eventual wean himself of methadone and be a positive role model for his children. The courts have placed VXKK on a CCO with judicial review to be served after he completed a prison term. This order is still in force and gives the Tribunal comfort that VXKK will have the structure he needs to ensure he gets drug and alcohol treatment. He will also be able to seek psychological counselling, undertake community work and

re-establish his relationships with his children and lead a criminal-free life.
The Tribunal notes that if he does not take this last chance, he will not be back to prison; it will be to East Timor.
At the heart of the policy underpinning s 501CA(4) is the protection of the Australian community. Many in the community would believe VXKK’s visa should remain cancelled. Others apprised of his difficult life story would afford him the opportunity to stay in Australia to turn his life around – this final chance. VXKK’s behaviour since his arrival has led to repeated breaches of the law and harm to members of the community. The risk of his repeating the criminal conduct has led to the cancellation of his visa. However, the best interest of his minor children, the impact on his family, the impediments to his removal, his minimal risk of reoffending unweigh the acceptable risk that he may bring harm to other members of the Australian community. This has lead the Tribunal to the conclusion his visa cancellation should be revoked. The Tribunal accepts that VXKK’s situation has been impacted by the immigration system, which has failed for over 22 years to resolve his residential status. This has contributed to his homelessness and resulted in his drug use. He should be given a final chance to get his life in order.
DECISION

For the reasons given above, the decision under review is set aside and in substitution, the Tribunal decides that the cancellation of VXKK’s visa should be revoked under section 501CA(4) of the Act.

I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke, Member.

.........................[sgd]...........................................
Dated: 6 September 2018

Dates of hearing: 27 & 29 August 2018

Advocate for the Applicant: Mr Greg Hughan

Solicitors for the Applicant: Kate Fitzgerald Refuge & Immigration Legal Centre

Advocate for the Respondent: Mr Neil Cuthbert

Solicitors for the Respondent:
Clayton Utz

APPENDIX 1
The following table has been derived from records against VXKK as outlined in a National Police Certificate dated 20 November 2017:

COURT

COURT DATE

OFFENCE

COURT RESULT

Sunshine Magistrates Court

6 July 2017

Commit indictable offence whilst on bail granted (2 charges), theft- from shop(shopsteal), intentionally cause injury

Possess heroin (2 charges)

Aggravated 300 days imprisonment. Concurrent. Convicted and a community correction order for 12 months. Unpaid community work: perform 100 hours of community work. This condition starts on release from prison and goes for 12 months

Convicted and a community correction order for 12 months. Unpaid community work: perform 100 hours of community work. This condition starts on release from imprisonment and goes for 12 months

Sunshine Magistrates Court

9 Sep 2016

Possess cartridge ammunition without license/permit

With conviction, fined $500

Sunshine Magistrates Court

26 June 2015

theft- from shop(shopsteal), use controlled weapon without excuse, go equipped to steal/cheat

Aggregated 5 months imprisonment concurrent

Melbourne Magistrates Court
4 May 2015
theft- from shop(shopsteal)

Possess drug of dependence (not named)

theft- from shop(shopsteal)(2 charges)

Assault with weapon(2 charges)

Six months imprisonment concurrent

14 days imprisonment concurrent

On each charge: 6 months imprisonment concurrent. Concurrent with other state sentences impose this day

10 months imprisonment concurrent. Concurrent with other state sentences impose this day

Sunshine Magistrates Court

16 April 2013

Possesses controlled weapon without excuse(3 charges) possesses dangerous article in public place assault with weapon

Intentionally cause injury, threaten to inflict serious injury theft- from shop(shopsteal)

Possess heroin

Possess cannabis

contravene suspended sentence order

Breach re-5/12/2011 possess a drug of dependence dishonestly receive stolen goods

aggregated 12 months imprisonment concurrent

aggregated 12 months imprisonment concurrent

aggregated 12 months imprisonment concurrent

With conviction, fined $150

Proven

Suspended sentence wholly restored. The restored term to be served is 2 months imprisonment

Sunshine Magistrates Court
5 Dec 2011
Possess a drug of dependency

Dishonestly receive stolen goods

Aggregated 2 months imprisonment. Concurrent. Sentence is wholly suspended under section 27 of the sentencing act 1991 operational period is 12 months

Aggregated 2 months imprisonment. Concurrent. Sentence is wholly suspended under section 27 of the sentencing act 1991 operational period is 12 months

Sunshine Magistrates Court

21 Dec 2010

Theft, shop theft - less than $600 (2 charges) theft from shop (shopsteal)

assault with weapon(5 charges)

intentionally cause injury

Fail to answer bail granted

On each charge: 6 months imprisonment concurrent

On each charge: 6 months imprisonment period to be served part concurrently is 5 months imprisonment

9 months imprisonment base sentence

1 month imprisonment concurrent

Sunshine Magistrates Court

20 May 2008

Possess unregistered general category handgun prohibited person possess unregistered firearm possess ammunition without license

Armed with a firearm with criminal intent possess controlled weapon without excuse

aggregated 12 months imprisonment concurrent

aggregated 12 months imprisonment concurrent

Melbourne County Court

24 June 2004

Affray (common-law)

Traffic drug of dependence

Theft (2 charges)

Common-law assault possess a drug of dependence

12 month youth training Centre

10 months youth training Centre. Four months of sentence concurrent

6 months youth training Centre on each count. Three months of each concurrent and concurrent
1 month youth training Centre in each count concurrent and concurrent. Concurrent with sentence now serving. Licence cancelled and disqualified for 2 years

Melbourne County Court
30 July 2003
Breach re-19/11/2002 armed robbery

Breach of community-based order. Order cancelled s16 months youth training centre

Sunshine Magistrates Court

20 May 2003

Theft of a motor vehicle, go equipped to steal /cheat, loiter with intent to commit an indictable offence, use heroin, use amphetamine

Possess controlled weapon without excuse, possess a dangerous article

Unlawfully on premises/precinct

Assault with weapon(2 charges)

Traffic heroin, traffic amphetamine

Loiter with intent to meant indictable offence

Carry prohibited weapon without exemption/approval

Possess money being proceeds of crime

On each charge: 2 months detention in a youth training centre

One each charge: 3 months detention in a youth training Centre

3 months detention in a youth training Centre

On each charge: 8 months detention in a youth training Centre

On each charge: 6 months detention in a youth training Centre

4 months detention in a youth training Centre

4 months detention in a youth training Centre

2 months detention in a youth training Centre

Melbourne County Court
19 Nov 2002
Armed robbery

Convicted community-based order for 2 years. To perform 450 hours of unpaid community work

[2018] AATA 3268

6 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Dates of hearing:	27 & 29 August 2018
Advocate for the Applicant:	Mr Greg Hughan
Solicitors for the Applicant:	Kate Fitzgerald Refuge & Immigration Legal Centre
Advocate for the Respondent:	Mr Neil Cuthbert
Solicitors for the Respondent:	Clayton Utz

COURT	COURT DATE	OFFENCE	COURT RESULT
Sunshine Magistrates Court	6 July 2017	Commit indictable offence whilst on bail granted (2 charges), theft- from shop(shopsteal), intentionally cause injury Possess heroin (2 charges)	Aggravated 300 days imprisonment. Concurrent. Convicted and a community correction order for 12 months. Unpaid community work: perform 100 hours of community work. This condition starts on release from prison and goes for 12 months Convicted and a community correction order for 12 months. Unpaid community work: perform 100 hours of community work. This condition starts on release from imprisonment and goes for 12 months
Sunshine Magistrates Court	9 Sep 2016	Possess cartridge ammunition without license/permit	With conviction, fined $500
Sunshine Magistrates Court	26 June 2015	theft- from shop(shopsteal), use controlled weapon without excuse, go equipped to steal/cheat	Aggregated 5 months imprisonment concurrent
Melbourne Magistrates Court	4 May 2015	theft- from shop(shopsteal) Possess drug of dependence (not named) theft- from shop(shopsteal)(2 charges) Assault with weapon(2 charges)	Six months imprisonment concurrent 14 days imprisonment concurrent On each charge: 6 months imprisonment concurrent. Concurrent with other state sentences impose this day 10 months imprisonment concurrent. Concurrent with other state sentences impose this day
Sunshine Magistrates Court	16 April 2013	Possesses controlled weapon without excuse(3 charges) possesses dangerous article in public place assault with weapon Intentionally cause injury, threaten to inflict serious injury theft- from shop(shopsteal) Possess heroin Possess cannabis contravene suspended sentence order Breach re-5/12/2011 possess a drug of dependence dishonestly receive stolen goods	aggregated 12 months imprisonment concurrent aggregated 12 months imprisonment concurrent aggregated 12 months imprisonment concurrent With conviction, fined $150 Proven Suspended sentence wholly restored. The restored term to be served is 2 months imprisonment
Sunshine Magistrates Court	5 Dec 2011	Possess a drug of dependency Dishonestly receive stolen goods	Aggregated 2 months imprisonment. Concurrent. Sentence is wholly suspended under section 27 of the sentencing act 1991 operational period is 12 months Aggregated 2 months imprisonment. Concurrent. Sentence is wholly suspended under section 27 of the sentencing act 1991 operational period is 12 months
Sunshine Magistrates Court	21 Dec 2010	Theft, shop theft - less than $600 (2 charges) theft from shop (shopsteal) assault with weapon(5 charges) intentionally cause injury Fail to answer bail granted	On each charge: 6 months imprisonment concurrent On each charge: 6 months imprisonment period to be served part concurrently is 5 months imprisonment 9 months imprisonment base sentence 1 month imprisonment concurrent
Sunshine Magistrates Court	20 May 2008	Possess unregistered general category handgun prohibited person possess unregistered firearm possess ammunition without license Armed with a firearm with criminal intent possess controlled weapon without excuse	aggregated 12 months imprisonment concurrent aggregated 12 months imprisonment concurrent
Melbourne County Court	24 June 2004	Affray (common-law) Traffic drug of dependence Theft (2 charges) Common-law assault possess a drug of dependence	12 month youth training Centre 10 months youth training Centre. Four months of sentence concurrent 6 months youth training Centre on each count. Three months of each concurrent and concurrent 1 month youth training Centre in each count concurrent and concurrent. Concurrent with sentence now serving. Licence cancelled and disqualified for 2 years
Melbourne County Court	30 July 2003	Breach re-19/11/2002 armed robbery	Breach of community-based order. Order cancelled s16 months youth training centre
Sunshine Magistrates Court	20 May 2003	Theft of a motor vehicle, go equipped to steal /cheat, loiter with intent to commit an indictable offence, use heroin, use amphetamine Possess controlled weapon without excuse, possess a dangerous article Unlawfully on premises/precinct Assault with weapon(2 charges) Traffic heroin, traffic amphetamine Loiter with intent to meant indictable offence Carry prohibited weapon without exemption/approval Possess money being proceeds of crime	On each charge: 2 months detention in a youth training centre One each charge: 3 months detention in a youth training Centre 3 months detention in a youth training Centre On each charge: 8 months detention in a youth training Centre On each charge: 6 months detention in a youth training Centre 4 months detention in a youth training Centre 4 months detention in a youth training Centre 2 months detention in a youth training Centre
Melbourne County Court	19 Nov 2002	Armed robbery	Convicted community-based order for 2 years. To perform 450 hours of unpaid community work