Wade and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 202

Wade and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 202 (10 February 2022)
Division:GENERAL DIVISION
File Number: 2021/8756
Re:Kerry Graham Wade
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:10 February 2022
Place:Perth

The decision of the delegate of the Minister dated 17 November 2021 not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act s 501CA(4) – decision of delegate of Minister not to revoke mandatory cancellation of visa – applicant fails character test – whether there is “another reason” to revoke the mandatory cancellation – Direction 90 applied – applicant sentenced to total effective sentence of three years and nine months’ imprisonment – applicant convicted of 40 counts of stealing and fraud-related crimes – there is “another reason” to revoke the mandatory cancellation – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501(7A), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Sentencing Act 1995 (WA) s 6(4)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Carter and Australian Securities and Investments Commission [2020] AATA 809
Comptroller-General of Customs v Akai Pty Ltd (1994) 50 FCR 511
CZCV and Minister for Home Affairs [2019] AATA 91
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Gage and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 326
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Johnson and Commissioner of Patents [2020] AATA 3983
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
NDBR v Minister for Home Affairs [2019] FCA 1631
NDBR v Minister for Home Affairs [2021] FCAFC 170
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Varley and Minister for Home Affairs [2019] AATA 376
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) para 14.4
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021) paras 5.1, 5.1(3), 5.2, 5.2(4), 7, 7(2), 8, 8.1, 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9(1)(c), 9.1, 9.2, 9.3, 9.3(1), 9.4, 9.4.1, 9.4.2
REASONS FOR DECISION
Deputy President Boyle
10 February 2022
THE APPLICATION

The applicant seeks review of the decision of a delegate of the respondent (Minister) dated 17 November 2021[1] not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] R1, G3/13.
The applicant’s visa was cancelled under s 501(3A) of the Act on 29 June 2021 on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
The application is made pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (AAT) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE
The issue for determination is whether I should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
THE HEARING AND THE EVIDENCE
The application was heard on 31 January 2022. The applicant was represented by Mr S Alteruthemeyer and the Minister was represented by Ms C Taggart of counsel. The applicant was the only witness to give evidence at the hearing. The following documents were admitted into evidence:
(a)Statement of the applicant dated 14 January 2022 (A1);
(b)Statement of the applicant’s daughter [child 3], undated (A2);
(c)Handwritten letter of the applicant’s daughter [child 3] to Santa, undated (A3);
(d)Statement of the applicant’s son [child 1], dated 21 December 2021 (A4);
(e)Birth certificate of the applicant’s mother (A5);
(f)G-documents filed by the Minister on 2 December 2021 (R1); and
(g)Supplementary G-documents filed by the Minister on 14 January 2022 (R2).
BACKGROUND
The Applicant is a 47-year-old citizen of New Zealand. He arrived in Australia as a 17-year-old with his parents in May 1992.[2] He says that has not returned to New Zealand since that time.[3]
[2] R1, G8/69.
[3] A1.
In his statement of 14 January 2022,[4] the Applicant says that his parents brought him to Australia “due to [his] constant health problems with living in New Zealand” as he is a chronic asthmatic.
[4] A1.
The applicant is married to an Australian citizen and has three children, aged 17, 14 and 11, all of whom were born in Australia. Prior to his imprisonment, the children lived with the applicant and their mother (the applicant’s wife).
On 16 April 2021 a jury found the applicant guilty of the following offences:
(a)19 counts of stealing as a director;
(b)18 counts of fraud;
(c)three counts of stealing as a director by way of a general deficiency.[5]
[5] R1, G5/40.
The applicant’s offending resulted in the theft of $253,211.21.[6]
[6] R1, G5/46.
The background to the offending, as set out in the sentencing remarks of Petrusa DCJ[7] is that in late 2012 the applicant agreed to go into business with Mr Kim Ledger, who the applicant had known for a number of years. A business was subsequently established, with the applicant and Mr Ledger each holding a 50 per cent share in that business called Tyrerack.
[7] R1, G5.
The applicant and Mr Ledger were the sole directors of Tyrerack and the applicant was responsible for running that business. After a couple of years, the business was augmented or grown by the establishment of a mobile tyre service called Tyres Your Way. The establishment of Tyres Your Way required the purchase and fitting out of vans to enable tyres to be replaced at customers’ residences. The applicant was responsible for purchasing the necessary items and arranging for the fit-out of the vans.
To this end four vans were purchased between January 2015 and July 2016.
Throughout the operation of Tyrerack and Tyres Your Way, the applicant had the sole conduct of the business and was the responsible for recording and paying the accounts and otherwise maintaining the records of the business. The applicant’s offending was committed against the businesses that he and Mr Ledger had established.
The particulars of the offending were set out in Petrusa DCJ’s sentencing remarks. Her Honour divided the applicant’s offences by category as follows.
Stealing as a director
Her Honour described the applicant’s offending in this category as follows:
In each of these cases, you deliberately and dishonestly inflated legitimate invoices. In each of these cases, a purchase was made for an item or items relating to the construction of a Tyres Your Way van. Alternatively, the items were purchased to replace consumables or to allow the vans to perform their function. In each case, the MYOB entry records an amount greater than the invoice amount. The total inflated amount was then transferred into your personal bank account. Whilst you subsequently paid the invoices from your own account, you kept the balance.
At trial, you suggested that on each occasion, you had in fact purchased other items necessary for this aspect of the business. You claimed that there had been invoices you had simply accumulated together. You claimed these invoices had originally been retained. The jury obviously rejected your evidence in this regard and so do I.[8]
[8] R1, G5/43.
Another type of stealing as a director was described by Petrusa DCJ as follows:
In respect of each of these offences, there are no invoices and the relevant MYOB entry and/or NAB bank account reference attributes each of the payments to a Jinyu tyre container. The moneys were paid directly into your personal account and is not recorded in any of the documentation associated with the containers.
Various descriptions are given to these payments in the MYOB records. A common one is reference to payment of GST on a Jinyu tyre container. You could offer no justification for these payments other than to suggest you did not steal from the company.[9]
[9] R1, G5/43.
The applicant denied the charges at trial and gave explanations for the payments which were not accepted by the jury or by her Honour in sentencing the applicant.
Fraud
The applicant deliberately and dishonestly created MYOB records that disguised payments relating to his racing car activities as legitimate business expenses. The applicant created those dishonest records in a number of ways. These were described by Petrus DCJ as follows;
… (1) by allocating the purchase to an incorrect or misleading supplier card, for example, count 59 where the payment of the WA Sporting Club race entry invoice was allocated to the Supagas supplier card.
(2) by entering a false, misleading or missing description into the MYOB purchase, for example, count 37 where the LF Performance invoice for work done on your Evo TMR 9 was described as being described as being "stock tyres".
(3) by the incorrect or misleading coding of items in the MYOB purchase screen, for example, counts 50 and 51 where the Dunlop race tyres, from Kostera's, Kalamunda, was coded to a GST paid account.
(4) by combining multiple invoices into one, purchase invoice, for example, in counts 37, 42 and 62. And fifthly, by entering items said to be bought for customers into inventory, for example, count 31 where 14 Pirelli Slick tyres were not put into inventory.[10]
[10] R1, G5/44.
In relation to the applicant’s explanation for these transactions, her Honour said:
In evidence, you said that these were legitimate, business expenses because by and large, they were sponsorship expenses. You also endeavoured to suggest in evidence that you honestly believed that as a 50 per cent shareholder and the managing director, entrusted to run the business, you could authorise these expenses. I do not accept this.
…
The complete failure to discuss these matters with Mr Ledger is a significant matter and demonstrative of your dishonestly. Further, it is no answer to suggest, as was raised during trial, that you were not experienced in being a company director.[11]
[11] R1, G5/44–5.
Stealing as a director by way of general deficiency
These offences related to payments made directly to a company held by the applicant (and his wife). The applicant would pay legitimate expenses associated with the business but would also pay himself an additional sum. Petrusa DCJ described the offences as follows:
These were charges of stealing as a director by way of a general deficiency. These relate to payments made directly to your company account in each of the calendar years, 2014 and 2015, and until August of 2016.
During those years, you, in relation to Jinyu container shipments, would, in addition to paying the legitimate expenses associated with those containers, pay to yourself an additional sum. The total amount you paid to yourself, in each of these years, is $51,568.50 in respect of the calendar year 2014, $67,287.86 in 2015, and $38, 700 in the year to August of 2016.
You suggested in evidence that you were properly entitled to these moneys because you had an agreement with Jinyu tyres that they would provide discounts on tyres, ordered by you, in order to compensate you for an overpayment and associated expenses that had been incurred, prior to going into business with Mr Ledger.[12]
[12] transcript at 45.
Having rejected the applicant’s explanation that he thought that he was entitled to these additional amounts, her Honour observed:
If you had a genuine belief that this was the case, you would have specifically raised it with Mr Ledger so that the amount of the repayments could be clearly identified and recorded in the business accounts. This is a matter of common sense.
Further, the circumstances surrounding the discovery of your wrongdoing demonstrates you were well-aware that you were not entitled to the money.[13]
[13] R1, G5/46.
Petrusa DCJ summarised the seriousness of the applicant’s offending as follows:
In total, your crimes deprived Tyrerack of $253,211.21 in under three years. In the 2014 calendar year, you took $60,942.28. In the calendar year 2015, you took $136,696.99. And in the seven months to 2016, before your criminality was discovered, you took $52,873.10.
Your criminal conduct is, therefore, very serious. These offences represent a breach of trust of a very high order. You were the managing director of this business, give free-reign to conduct the business as you saw fit. You were the person paying all of the accounts and keeping the business records.
…
Your conduct was premeditated and at least in respect of counts 63 to 65, systematic. This was all done purely for personal gain.[14]
[14] R1, G5/46–7.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
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)...; 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.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); …
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
...
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act 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.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that, “A person or body must comply with a direction under subsection (1).”
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[15] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[16]
[15] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[16] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens 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 by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[17] The character test is defined in s 501(6) of the Act (see [25] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [26] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. Both sub-sections apply in the applicant’s case. The applicant concedes that he does not pass the character test[18] and I find that to be the case.
[17] [2009] AATA 47; (2009) 106 ALD 66.
[18] Applicant’s statement of facts, issues and contentions filed 22 December 2021 (applicant’s SFIC) para 1.
As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [28] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Minister made the following submissions in relation to the seriousness of the applicant’s offending:
(a)Whilst Direction 90 makes plain that certain offending or conduct ought to be viewed as “very serious” or “serious”, it does not prescribe that only offending or conduct of that kind is to be construed as “serious” or “very serious”. To the contrary, 8.1.1(1)(a) and (b) both expressly state that the conduct identified in those paragraphs is not in limitation to the range of conduct that may be considered very serious or serious. Further, conduct may constitute “serious conduct” even if it does not constitute a criminal offence.
(b)Similarly, there is no requirement that only the commission of offences which result in the imposition of a maximum penalty are to be construed as serious (or very serious). The issue for consideration is the nature and seriousness of a non-citizen’s conduct to date.
(c)The applicant’s criminal conduct was very serious. It involved a lengthy period of offending and the theft of significant monies in circumstances where the applicant was placed in a position of trust.
(d)The imposition of a sentence of imprisonment for a period exceeding three years for what was the applicant’s first conviction is also objectively demonstrative of the very serious nature of the applicant’s offending.[19] The sentencing judge said as much.
(e)The cumulative effect of the applicant’s sustained offending was significant. It resulted in the theft of a large amount of money and led or contributed to the deregistration of the business.
(f)The fact that there was a settlement of civil proceedings (the terms of which were not before the Tribunal) does not alter the assessment that the applicant’s offending was of a very serious nature.
[19] Citing Sentencing Act 1995 (WA) s 6(4).
The applicant’s submissions[20] did not directly address each of the considerations under Direction 90. In particular, the applicant’s SFIC makes general statements as to the philosophy of the legislation and Direction 90 and engages in an analysis of the delegate’s decision and why the conclusions reached by the delegate did not properly apply Direction 90.[21] The Reply stated that “[t]he Applicant’s contentions [in the applicant’s SFIC] are entirely directed towards to [sic] the Delegates [sic] failure to properly apply Direction 90”.[22] That is not a particularly helpful approach. As I pointed out to the applicant’s counsel at the hearing, the role of the Tribunal is, as I described at [51] in Carter and Australian Securities and Investments Commission:[23]
… to do over again that which the original decision maker did and, on the evidence before the Tribunal at the time that it makes its decision, exercising the same discretions that the original decision maker had, make what it considers to be the correct or preferable decision. That is not, as asserted by the Applicant, an exercise in considering what errors the delegate made. It will be an exercise in considering the evidence that was presented to the delegate, and any further evidence put to the Tribunal by the parties, and forming its own view as to what the correct or preferable decision is.
(Emphasis added.)
[20] Contained in the applicant’s SFIC and Submissions in Reply to the Minister’s statement of facts, issues and contentions filed 14 January 2022 (Minister’s SFIC).
[21] applicant's SFIC paras 20–32 under the hearing “Findings of Delegate”.
[22] Reply para 11.
[23] [2020] AATA 809; see also Johnson and Commissioner of Patents [2020] AATA 3983.
Hill J in Comptroller-General of Customs v Akai Pty Ltd[24] at 521 described the Tribunal’s role as follows:
The Tribunal is an administrative Tribunal and, as has often been said, its function is merely to do over again what the original decision-maker did, working out, as a further step in administration, what it considers the decision ought to be: cf Mobil Oil Australia Pty Limited v Commissioner of Taxation (Cth) (1963) 113 CLR 475 at 502 per Kitto J; Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 at 413-415 per Bowen CJ and Deane J, and more recently see Liedig v Commissioner of Taxation (1994) 50 FCR 461.
(Emphasis added.)
[24] (1994) 50 FCR 511
The above point in relation to the role of the Tribunal was made in the Minister’s SFIC[25] to which the applicant’s statement quoted in [43] above was presumably a response. I, like the Minister in his SFIC, will treat the applicant’s claims of the errors made by the delegate as being “contentions directed to why there is another reason to revoke cancellation”.[26] For future reference, however, it would have made my task of understanding the applicant’s case a lot easier if the applicant had followed the usual practice of specifically addressing, by reference to the evidence and relevant authorities, each of the considerations identified in Direction 90 rather than purporting to identify errors made by the delegate. The delegate’s views and findings are not relevant to the task that I am required to undertake.
[25] Minister’s SFIC para 40.
[26] Minister’s SFIC para 40.
On that basis, I have read the applicant’s SFIC and Reply and I understand the applicant to make the following submissions in relation to the seriousness of his offending:[27]
[27] In reference to Direction 90 para 8.1.1.
(a)By reading sub-paras 8.1.1(1)(a) through to (g), one obtains a very clear indication of the type of behaviour which would prevent a conclusion that there was another reason to revoke the original cancellation decision.[28]
[28] applicant's SFIC para 7.
(b)Paragraph 8.1.2 deals specifically with the risk to the community in the event of further offences. At the heart of this consideration is the conviction of the decision-maker that there is a real or significant likelihood of reoffending. Only when that is determined does the type of offence even arise.[29]
[29] applicant's SFIC para 8.
(c)The Delegate did extract the total value of funds proven to be taken from the Company ($253,211.21) but neglected to note that a civil settlement reached forgave loans in the order of $390,000. In the sentencing the prosecution did not press for a compensation order.
(d)The applicant received a term of imprisonment of 2 years and 4 months for a single offence. Given that the maximum sentences are reserved for those at the top end of seriousness it follows that, while the Court considered them serious enough for imprisonment, they were at the lower end of seriousness for these types of offences.[30]
(e)The offences of which the applicant was convicted are not of such a serious nature that they should be used to support a visa cancellation and are clearly not within the serious conduct contemplated by the Act and Direction 90.[31]
(f)Petrusa DCJ’s remarks indicate that the degree of criminality is properly reflected by a cumulative sentence of 3 years 9 months imprisonment.[32]
(g)The Reply refers to 19 cases and submits that those cases involved criminal behaviour of the type contemplated by Direction 90.[33] Presumably, the applicant’s point is that these cases did not involve offences of the type for which the applicant was convicted.
(h)The Respondent refers to the significant number of counts and the significant sum stolen over the period. The basic proposition, according to the applicant, is that the applicant was unable to offer explanation for the sums. This ignores the fact that the applicant was initially charged with 257 counts. He offered sufficient explanations for 202 counts which left 55 for the trial. The applicant was found not guilty of a further 15 counts leaving the 40 for which he was convicted.[34]
(i)The Minister's handling of the sentencing remarks is demonstrative of the error in failing to distinguish the functions of a sentencing judge from those of a decision-maker applying Direction 90. The sum in question determined that the offences were sufficiently serious to warrant imprisonment. That, in itself, cannot be a determinative factor in deciding whether to revoke a cancellation, as all automatic cancellations stem from offences which were serious enough to warrant imprisonment. Rather, what is required is some objective assessment of the offence which justifies its inclusion with the types of offences contemplated by Direction 90. Section 6(1) of the Sentencing Act states "A sentence imposed upon an offender must be commensurate with the seriousness of the offence". Therefore, a two-year-four-month sentence for a 10-year maximum is a precise measure of the seriousness of the offence.[35]
(j)It is not for a decision-maker to revisit a judge's sentence and therefore, not appropriate to revisit any victim impact statement to which the judge may have had recourse unless there is a suggestion of possible reoffending, which is not the case here.[36]
(k)The seriousness of a penalty does determine the relative seriousness of an offence as required by s 6(1) of the Sentencing Act. To include an offence which is not generally contemplated by Direction 90, it is submitted that there would need to be evidence that the offence was at the upper end of the scale which would be supported by a sentence at the upper end of the scale.[37]
(l)The financial loss described in the victim impact statement is contradicted by the Court's findings that there was no requirement for a compensation order.[38]
[30] applicant's SFIC para 23.
[31] applicant's SFIC para 24.
[32] applicant’s SFIC para 25.
[33] Reply para 5.
[34] Reply para 6.
[35] Reply para 7.
[36] Reply para 8.
[37] Reply para 12.
[38] Reply para 17.
I have significant issues with many of the applicant’s above propositions. The core of the applicant’s submissions in relation to the nature and seriousness of the applicant’s conduct[39] is that this consideration, and it would appear the broader consideration of the protection of the Australian community,[40] is not enlivened because of the type of crimes committed by the applicant. I explored that proposition with Mr Alteruthemeyer at the hearing as follows:
[39] Direction 90 para 8.1.1.
[40] Direction 90 para 8.1.
TRIBUNAL:    So, is your proposition that the crimes of which the applicant has    been found guilty are not crimes in relation to which the Australian   community needs protection?
COUNSEL:     Yes.
TRIBUNAL:     That is, I must say, a very novel and brave submission. On what    basis do you say his crimes don’t fall within that first consideration?
COUNSEL:     Because the first consideration is about risk. It is about - the list them,                   they talk about particular types of offences; violent and sexual crimes,   crimes of a violent nature, acts of family violence. The Direction - - -
TRIBUNAL:     Are you talking about 8.1.1?
COUNSEL:     Yes, the seriousness of the conduct.
TRIBUNAL:     Yes, but the seriousness of the conduct is he committed serious    white-collar crime.
COUNSEL:     Look I acknowledge that serious white-collar crime is not excluded    from this Direction. My argument is that the type of crime that is   specifically targeted by this Direction is listed in it, and for Mr Wade’s   crime to be included, there would need to be some evidence that his   crime was particularly offensive.
…
TRIBUNAL:     But, anyway, your submission is that the offences of which the    applicant was convicted don’t come within the operation of the   mandatory primary consideration of protection of the Australian   community.
COUNSEL:     They don’t come within those mentioned offences. It is not excluded                     but it would need to be at the top end of the seriousness, or there   would need to be some other reason, to include an offence, which   wasn’t listed in these type of offences.[41]
[41] transcript at 8–9.
I do not accept the applicant’s submission. There is no basis to read paragraph 8.1.1 of Direction 90 in the way contended by the applicant. Paragraph 8.1.1 of Direction 90 requires the decision maker to “consider the nature and seriousness of the non-citizen’s criminal conduct or other conduct” (emphasis added). The consideration specifically requires consideration of conduct which even falls short of criminal. Accordingly, the assertion that criminal conduct which resulted in the applicant being convicted of 40 offences and receiving a prison sentence of three years and nine months[42] does not come within the operation of this consideration must be rejected.
[42] The total of the sentences imposed was in fact over 29 years, however, with concurrency of sentence orders and a reduction this resulted in a total term of imprisonment of three years and nine months (see the sentencing remarks of Petrusa DCJ: R1, G5/51).
The fact that sub-paras (a) and (b) of para 8.1.1(1) of Direction 90 identify specific types of offences which must be “viewed very seriously”[43] and which “are considered by the Australian Government and the Australian community to be serious”[44] does not mean that offences not specifically identified cannot be viewed as serious or very serious. Certainly, it does not mean, as contended by the applicant, that the applicant’s 40 convictions do not even come within the consideration required by this paragraph because they are not “at the top end of the seriousness” (see [47] above).
[43] Direction 90 para 8.1.1(1)(a).
[44] Direction 90 para 8.1.1(1)(b).

The construction contended by the applicant also ignores the opening words of each of sub-paras (a) and (b) which are, “without limiting the range of conduct that may be considered very serious”[45] and “without limiting the range of conduct that may be considered serious”.[46]
[45] Direction 90 para 8.1.1(1)(a).
[46] Direction 90 para 8.1.1(1)(b).
I also take issue with what appears to be the applicant’s starting point for this consideration as indicated in the submission identified in [46(e)] above, namely that the crimes of which the applicant was convicted are “not of such a serious nature that they should be used to support a visa cancellation”. This is not an exercise of “supporting a visa cancellation”; the applicant’s visa has been mandatorily cancelled under s 501(3A). The exercise that the decision-maker must undertake is to determine whether, applying Direction 90, there is “another reason why the original decision [the mandatory cancellation] should be revoked”.[47]
[47] The Act s 501CA(4)(b)(ii); see [28] above.
I also reject the applicant’s submission set out at [46(h)] above. The characterisation of the applicant’s conduct that resulted in his being convicted of 40 offences of dishonesty, namely that “the applicant was unable to offer explanation for the sums”, is wrong. Even in closing, counsel for the applicant continued to downplay the criminality of the applicant’s behaviour as merely being an inability to provide an explanation or to properly account for the monies taken. Mr Alteruthemeyer submitted:
Mr Wade gave evidence as to how these charges came about and while it may seem glib in the submissions that we’ve filed, we would categorise this as being the result of a business arrangement. The business arrangement was clearly one-sided and complicated and Mr Wade gave evidence that basically what he did was combine a business that he already owned with some funds from a silent partner, who then let him go on and run that business in the same way that he always had. And while the amount of money was substantial, the original charges for which he was able to provide explanations, there were many more than the final amount that came to court, and for those he wasn’t able to provide explanations.
But basically I think the court can see that he treated the company’s money as his own and that’s stealing but that’s not unusual for people who own companies. A mistake that Mr Wade clearly made was that he didn’t appreciate it that that had changed, you know, when he sold effectively the business to somebody else.[48]
[48] transcript at 45.
At this point the following exchange occurred with Mr Alterruthemeyer:
TRIBUNAL:     Well, that’s not quite right, is it? The judge in sentencing made very    specific findings that he’d acted dishonestly. The other problem with your submission of course is that I can’t go behind the conviction. He’s been convicted of 19 counts of fraud and however many counts of gaining a benefit by fraud. Under the Criminal Code what you’re describing as being his intent would constitute an absolute defence.
…
COUNSEL:     Yes and when you’re dealing with companies and you don’t disclose    or properly account for those kinds of transactions, then it becomes   stealing.
TRIBUNAL:     No, it doesn’t.
COUNSEL:     Well, that’s - - -
TRIBUNAL:     There’s a difference between not properly recording and deliberately                     stealing. You keep on couching it in terms of all that he did really   was not properly account. The answer is no, he deliberately stole.
COUNSEL:     Well, that was my argument because they started off with 257 counts.
TRIBUNAL:     So what?
COUNSEL:     Well, he properly accounted for - - -[49]
[49] transcript at 45–7.
This last comment by counsel reflects para 6 of the Reply set out in [46(h)] above. That too, is a contention that I reject. The fact that the applicant was acquitted of charges is irrelevant in assessing the seriousness of the charges on which he was convicted, which were charges of dishonesty, not inadvertence or lack of corporate understanding.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)(Paragraph 8.1.1(1)(a)) – the applicant’s conduct was not of the type described in this paragraph.
(b)(Paragraph 8.1.1(1)(b)) – the applicant’s conduct was not of the type described in this paragraph.
(c)(Paragraph 8.1.1(1)(c)) – while the sentences imposed were at the lower end of the range of terms of imprisonment that could have been imposed, the sentences, and in particular the actual term of imprisonment that the applicant is to serve (three years and nine months), is significant. In sentencing the applicant, Petrusa DCJ characterised the applicant’s criminal offending as “very serious” and “a breach of trust of a very high order” (see [23] above). I agree with her Honour’s characterisation.
(d)(Paragraph 8.1.1(1)(d)) – the applicant was convicted of 40 offences committed over a three-year period. Counsel for the applicant made the following submission in relation to this consideration at the hearing:
TRIBUNAL:      What about subparagraph (e) of 8.1.1(1), which requires the    tribunal to take into account the cumulative effect of repeat   offending? Now, this was not a one-off offence. This was a   series of - and I must say they are serious offences over an   extended period.
COUNSEL:       This isn’t repeated offending though, is it? … This is multiple    counts.
TRIBUNAL:      Which is repeat offending. This is not a one-off incident.
COUNSEL:       It is an incident over a period of time.
TRIBUNAL:      Yes. And he was convicted of multiple offences.
COUNSEL:       Yes.
TRIBUNAL:      How is that not repeat offending?
COUNSEL:       Repeat offending, I would submit, was if he does it again after    having been convicted.[50]
I do not accept that contention. Sub-paragraph (d) directs the decision-maker to consider “the frequency of the non-citizen’s offending”. There is no basis to read that straight-forward statement as meaning “consider whether the non-citizen has re-offended after being convicted”. Re-offending after being convicted may be relevant in considering remorse, insight and the likelihood of reoffending, however, the requirement to consider the frequency of the non-citizen’s offending comes under the nature and seriousness of the conduct consideration. I find that the applicant’s offending was frequent, which must weigh against the applicant. There is, however, no discernible trend of increasing seriousness.
(e)(Paragraph 8.1.1(1)(e)) – I do not consider that there is a “cumulative effect” of the applicant’s offending per se. While he was convicted of multiple offences committed over an extended period, and those offences resulted in the loss of over $250,000 (some of which has apparently been recovered), the fact that the offending occurred on multiple occasions is almost in the nature of the offence. I do not find that it aggravates the seriousness of the individual offences.
(f)(Paragraph 8.1.1(1)(f)) – not relevant.
(g)(Paragraph 8.1.1(1)(g)) – not relevant.
[50] transcript at 11.
Based on the considerations in para 8.1.1 of Direction 90, I, like Petrusa DCJ (see [23] above), am satisfied that the applicant’s offending has been very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[51] at [56] summarised the task for the tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[51] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[52] Moshinsky J stated, at [68]:
.. there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[52] [2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The nature of the harm to individuals and to the community if the applicant were to engage in the criminal behaviour which he has in the past, is obvious and serious. The Minister submitted that:
The theft of hundreds of thousands of dollars from a business partner is harmful. In the case of the Applicant’s offending, Mr Ledger provided an account of the financial, relational, reputational and emotional stress and distress that the Applicant’s dishonesty caused both to Mr Ledger and to other employees. Further, the business ceased to exist and was deregistered.[53]
(footnotes omitted)
[53] Minister’s SFIC para 49.
In response to the above submission, the applicant contended that:
The financial loss described in the victim impact statement is contradicted by the Court's findings that there was no requirement for a compensation order.[54]
[54] Reply para 17.
The applicant’s contention misses the point. Sub-paragraph 8.1.2(2)(a) of Direction 90 requires consideration of “the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct”. While the harm caused to the previous victims of the applicant’s criminal conduct may be indicative of the harm that is likely to be caused if the applicant were to engage in such criminal behaviour in the future, the consideration is forward-looking: it is not limited to simply considering the harm that was caused in the past. It is, therefore, not an answer to the question posed by this consideration to say that because of the circumstances particular to the past offending and the fact that the applicant apparently made restitution of the money that he stole, there would be no harm if the applicant were to repeat his offending.
Obviously, harm is caused to those from whom money is stolen or obtained by fraud. These are clearly not victimless crimes. I considered the type of harm caused by these sorts of crimes in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs:[55]
46. … Stealing as a servant, and the breach of trust which that involves, not only has obvious direct financial consequences for the victim, but also the potential to undermine the operations of the effected business and to adversely impact those to whom that business provides services and the livelihoods of those employed by the business. Despite the Applicant’s apparent attitude, at least at the time that he was committing the offence, that this was a victimless crime, that is not the case. The good order and commercial productivity of society relies on those in positions of trust honouring that trust.
47.In addition to the above largely direct consequences that would flow if the Applicant were to repeat his criminal behaviour, such offending also has knock-on effects for the broader community because of the additional law enforcement and business operational expenses (including insurance costs) that this sort of offending causes.
[55] [2021] AATA 1208.
The same comments apply to the applicant’s case. I find that the nature of the harm that would be caused to the community if the applicant were to reoffend as he has in the past would be serious, not only to individuals in the community, but also to the community as a whole.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
At para 26 of his SFIC, the applicant contended that:
… Her Honour makes the finding that, given Kerry's prior good character and current circumstances it is was [sic] unlikely that he would offend in this way again. Given the unique circumstances surrounding the business arrangement this is clearly correct… The heading to paragraph 8.1.2 makes clear that an assessment of risk of future harm includes a perception of risk of similar conduct in the future.
The Minister’s SFIC made the following submissions:
55.… the Applicant’s contention that he suffered the greatest harm from his offending is also relevant to assessing the likelihood of further offending in the future. As set out at [27] above, the Applicant has consistently denied his wrongdoing. He explains his convictions are the result of a civil dispute between business owners for which the Applicant came off second best or were the result of the Applicant simply failing to keep accurate records.
56.A lack of insight to that extent and degree is significant. It reduces assertions from the Applicant that he will not reoffend as largely meaningless. If he does not accept or understand that his conduct was more than a business dispute or was not the result of poor record keeping, then it cannot be said he is sufficiently aware of the conduct that is to be avoided in the future. His offending did not arise because of the person he was in business with. It arose because the Applicant deliberately and dishonestly stole money over a period of time and took steps to actively conceal that theft.
57.There is no prohibition on the Applicant entering into a business venture with another person in the future. There is no suggestion that he will not do so. Were he to do so in the future there is a risk he will reoffend, including because the Applicant apparently lacks insight and awareness as to the fact of his wrongdoing and the harm that it caused others.
…
59.It is acknowledged that between the time of the detection of his offending and the commencement of his term of imprisonment, the Applicant remained in the community for at least three years and did not offend in that period. One explanation for that is that the Applicant was not in a position to do so because he was not in business with another or otherwise placed in a position of trust in the same way he had been when he did offend. It is also relevant that the Applicant was subject to bail conditions during that period.
The applicant in the Reply submits:
No. 54. This paragraph ignores the Sentencing Judge's findings inappropriately and renders the remaining paragraphs 55 – 61 largely unsupported as they rely upon a difference of opinion with that of the Sentencing Judge. This is not open. Further, the Applicant's behaviour since imprisonment has been exemplary. The Classification Review and Individual Management Plan filed with the Tribunal demonstrate that the Applicant is a minimum security prisoner placed at Bunbury Regional Prison Pre-Release Unit. He is described as an above average worker employed in the Maintenance Party. These are relevant factors and the Respondent would need the support of authority to exclude them.[56]
[56] Reply para 21.
I do not accept the applicant’s submission. The Tribunal is not bound to accept the judge’s opinion of the likelihood of the non-citizen offending in the future. There are numerous cases dealing with how convictions and sentences are to be treated in exercising the discretion under s 501CA of the Act. Some of these were reviewed in Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[57] at [75]–[80]. One of the cases referred to in the above paragraphs of Pattison was Minister for Immigration and Multicultural Affairs v Ali in which Branson J noted:
41First, it seems to me to be clear beyond argument that the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based.
42Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence.
[57] [2020] AATA 3953.
In Minister for Immigration and Multicultural Affairs v SRT[58] the Full Court of the Federal Court of Australia noted:
40... where the decision to be reached [by the Tribunal] depends on there having been a sentence that satisfies section 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
…
45... It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of the conviction and of the resulting evidence. The policy must be that a conviction, and a sentence imposed as a result of that conviction, are matters for the criminal law and its procedures.
[58] [1999] FCA 1197; (1999) 91 FCR 234.
It is clear that I cannot go behind or impugn the conviction or the sentence of the Court in respect of the offences which caused the applicant’s visa to be cancelled under s 501(3A) of the Act. It is equally clear that I cannot make a finding of fact which is inconsistent with a necessary element of the offence of which the applicant has been convicted or upon which the sentence was based. That, however, does not meant that I am bound to accept the sentencing Judge’s view as to the likelihood of the applicant offending in the future. Neither the Sentencing Act nor any sentencing guidelines issued thereunder make a prisoner’s likelihood of reoffending a consideration in determining the sentence imposed. In any event, the role being undertaken by a sentencing judge and that which I am obliged to undertake under Direction 90 are different. I am obliged to assess the likelihood of the applicant “engaging in further criminal or other serious conduct, taking into account” the matters identified in sub-paras (i) and (ii) of para 8.1.2(2)(b). I am obliged to form my own view as to what the correct or preferrable decision is applying Direction 90, based on the evidence before me at the time of my decision. That evidence, for instance in relation to rehabilitation, may be different to the evidence that was before the sentencing judge. Intervening circumstances or behaviour exhibited by an applicant since they were sentenced may change the assessment of the likelihood of further offending. My job is to make an assessment at the time of my decision of the likelihood of the applicant engaging in further criminal or other serious conduct.

The applicant’s assertion in his statement[82] made on 14 January 2022 that “[a]ll of [his] assets have been sold in recent years” was tested in cross-examination. Albeit somewhat reluctantly and only after a quite lengthy exchange with the Minister’s counsel, the applicant conceded that that statement was not correct:
COUNSEL:     So I would suggest to you again that your evidence today is to - your                     statement saying that you had no assets to sell both was incorrect   but also was not - it wasn’t true, and you knew it wasn’t true at the   time?
APPLICANT:   Yes. Well, yes, you could - you could say that, but, I mean, I’m sure    if you sell the assets and pay for education and care for the three   children, you would probably have nothing left.
…
COUNSEL:     But I’m sticking with what you have said in your statement …Where    you said you have no assets to sell and you would have no money to   relocate to New Zealand… I’m suggesting to you, and I’m asking you   to agree or disagree, that you knew that wasn’t true at the time you   wrote it in your statement?
APPLICANT:   Well, I don’t know whether I totally agree because this is depending    on which point of view you’re looking at it from. So you’re looking at   it as I have assets to sell, if I’m a single man. I have a wife and three   kids to take care of. It doesn’t necessarily mean I’m selling the   property and I’m taking the money and I’m going to New Zealand and   my wife and kids aren’t. So am I supposed to leave my wife and kids   homeless if they stay in Australia?[83]
[82] A1.
[83] transcript at 37.
The applicant’s counsel in closing made no reference to impediments to the applicant establishing and maintaining a basic living standard that he may face if he were removed from Australia.
I am satisfied that there would be no impediments of the type identified in para 9.2 of Direction 90 in the applicant establishing and maintaining basic living standards if he were to be returned to New Zealand. This consideration does not weigh in favour of revocation of the cancellation of the applicant’s visa.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 90 is as follows:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The wording of this consideration is materially the same as that in para 14.4 of Direction 79. As I noted in respect of the same provision in Direction 79 in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[84] at [109]–[111] and in Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[85] at [138]–[139], although para 9(1)(c) of Direction 90 and the heading to para 9.3 refer only to impact on victims, para 9.3(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa “on members of the Australian community including victims” (emphasis added).
[84] [2020] AATA 417.
[85] [2020] AATA 5165.
Insofar as a consideration broader than the impact on victims is required, then one aspect of the possible impact of the applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the applicant’s removal (i.e. a decision not to revoke the cancellation) is also examined below in the consideration of the applicant’s links to the Australian community under paragraph 9.4 of Direction 90. Insofar as the impact on those members of the Australian community is to be considered, then I do so in those considerations.
Neither party identified this as a relevant consideration. Insofar as para 9.3 of Direction 90 requires consideration of the impact on victims of the applicant’s crime, there was no evidence or information before me upon which such a consideration could be based.
Links to the Australian Community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
The strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, 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.
The Minister’s SFIC makes the following submission:
86. The Applicant arrived in Australia shortly after turning 17. He has lived in Australia for 29 years. His immediate family is here. It can be accepted that the Applicant has strong and enduring ties to Australia. That matter weighs in favour of revocation.
87. However, in all of the circumstances of this matter, including those relevant to the primary considerations and the lack of impediments to the Applicant if he were removed to New Zealand, this consideration does not outweigh those factors which support non-revocation.
I take issue with the Minister’s submission that “this consideration does not outweigh those factors which support non-revocation”. As I set out below, the weighing exercise to be undertaken in accordance with Direction 90 is to weigh all of the considerations (noting that primary considerations should generally be given greater weight than other considerations)[86] and to determine whether those that weigh in favour of revocation of the cancellation of the visa outweigh those that weigh against revocation. Whether one particular consideration is outweighed by a consideration that weighs the other way is irrelevant.
[86] Direction 90 para 7(2).
The applicant’s SFIC makes the following submissions, which, while not identified as such, I take to be relevant to this consideration:
Kerry does have an Australian wife, 3 Australian children and an extended network of family and friends which has grown from his many productive years as a respected citizen and taxpayer in his community.[87]
[87] applicant’s SFIC para 19.
The Reply, again while not identifying the submission as relating to this consideration, submits that:
The Applicant's family and friends have lodged a significant number of letters and statements in support. Some of these are gut-wrenching to say the least.[88]
[88] Reply para 9.
Mr Alteruthemeyer in closing submitted that:
In terms of links to the Australian community, we’ve filed numerous documents with you. He has an established family in Australia. He has an established network in Australia. He has links to the Australian community and, apart from this offence, has been, what appears to have been, a model citizen.[89]
[89] transcript at 49–50.
It is clear from the statements that have been provided that the applicant has substantial links to the Australian community and that there would be a significant emotional impact on those close to the applicant if he were forced to return to New Zealand. This would especially be the case with his children. The applicant arrived in Australia as a 17-year-old and has lived here for nearly 30 years. He has built his life in Australia, has raised a family in this country and those who are close to him live in Australia. Until his offending started in or around 2015 or 2016, it would seem that the applicant had led an exemplary life. He had contributed significantly to the Australian community through his employment, his business activities and the services that he provided to members of the community. It is also apparent that the applicant has contributed to the community through his involvement in motorsport.
I find that this consideration, links to the Australian community, weighs in favour of revocation of the cancellation of the applicant’s visa and that significant weight should be given to it.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In opening, the following exchange took place with Mr Alteruthemeyer:
TRIBUNAL: Is impact on Australian business - I think there are some indirect references made, albeit 9.4.2 of Direction 90 does seem to look at delivery of major projects in Australia.
COUNSEL: I don’t think it’s relevant for this matter.
Neither party made any submissions on this consideration and I agree that it is not relevant in this case.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [35] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[90] and the Full Court’s judgment in Minister for Home Affairs v HSKJ.[91]
[90] [2018] FCA 594; (2018) 74 AAR 545.
[91] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[92] At [21], Wigney J cited [23] of Colvin J’s judgment in Suleiman which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[92] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. ...
I adopt the approach directed by the above cases.
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, I assess the likelihood of the applicant engaging in further criminal or other serious conduct is so low as to make the risk not an unacceptable one. Because of that assessment, while the consideration of the protection of the Australian community weighs against the revocation of the cancellation of the applicant’s visa, in the present case this consideration should be afforded only minimal weight.
The second primary consideration, family violence, is not relevant in this case.
The third primary consideration, the best interests of minor children, for the reasons set out at [99] above, weighs heavily in favour of the revocation of the cancellation of the applicant’s visa.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa. For the reasons set out at [112] above, only minor weight should be given to this primary consideration.
In relation to the “other considerations” identified in Direction 90, the consideration of the extent of impediments does not weigh in favour of revocation of cancellation of the applicant’s visa.
The consideration of the impact on victims as directed by para 9.3 of Direction 90, insofar as it encompasses impact on members of the community other than victims, is covered by my consideration of other paragraphs of Direction 90 (see [124] above) and insofar as para 9.3 calls upon me to consider the impact of the decision on victims, there is no evidence before me to make any assessment.
The consideration of the nature and duration of the ties that the applicant’s has to the Australian community weighs in favour of the revocation of the cancellation of the visa. For the reasons set out at [133] above, I find that significant weight should be given to this consideration.
Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the considerations in favour of revocation outweigh those against revocation. Accordingly, I find that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 17 November 2021 not to revoke the cancellation of the applicant's Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 152 (one hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 10 February 2022

Date of hearing: 31 January 2022

Counsel for the Applicant: Mr S Alteruthemeyer

Solicitors for the Applicant: Morgan Alteruthemeyer

Counsel for the Respondent: Ms C Taggart

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	31 January 2022
Counsel for the Applicant:	Mr S Alteruthemeyer
Solicitors for the Applicant:	Morgan Alteruthemeyer
Counsel for the Respondent:	Ms C Taggart
Solicitors for the Respondent:	Sparke Helmore Lawyers