Wallis and Minister for Immigration and Multicultural Affairs (Migration)
[2024] ARTA 624
•12 December 2024
Wallis and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 624 (12 December 2024)
Applicant:Cobain Quinn Wallis
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7393
Tribunal:Deputy President K McMillan KC
Place:Brisbane
Date of Decision: 12 December 2024
Date of Written Reasons: 9 May 2025
............................SGD..................................
Deputy President K McMillan KC
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 24 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed.
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] 279 FCR 549
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection(2019) 273 FCR 121
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 417 ALR 36
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Mickelberg v Director of Perth Mint[1986] WAR 365
Minister for Immigration and Multicultural Affairs v Ali(2000) 106 FCR 313
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] 184 ALD 357.
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs [2022] 275 CLR 582
QKVH and Minister for Home Affairs [2020] AATA 4431
Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888
Rano v Minister for Home Affairs, Minister for Cyber Security[2024] FCA 1003
Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424
Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146
R v Volante [2021] QCA 109
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024).
Statement of Reasons
THE APPLICATION
These are my reasons for a decision I made on 12 December 2024 to affirm a decision made by a delegate of the Respondent on 18 September 2024 not to revoke the cancellation of the Applicant’s visa.
The Applicant, Mr Wallis, is a 24 year old citizen of New Zealand who migrated with his father and grandmother to Australia almost 20 years ago. He held a special Category (Temporary) (Class TY) (Subclass 444) (the visa). On 25 May 2023, while the Applicant was serving a sentence of imprisonment for one count of rape, the visa was cancelled. The Applicant applied unsuccessfully to the Respondent for revocation of the cancellation decision. He has asked the Tribunal to review that non-revocation decision made on 18 September 2024 (the Reviewable Decision).
LEGAL FRAMEWORK
Migration Act
The Migration Act 1958 (Cth) (Migration Act) empowers the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); …
[Original emphasis.]
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; …
[Original emphasis.]
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons if the Minister is satisfied that:
a.the person does not pass the character test because of the operation of paragraph (6)(a) (the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months); and
b.the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or a Territory.
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[1] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[1] Migration Act, s 501CA(3)(b).
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[2]
[2] Migration Act, s 501CA(4)(b)(i(i).
The Applicant concedes he does not pass the character test
On 23 February 2023 at the District Court of Queensland at Emerald, the Applicant was convicted by a jury of one count of rape pursuant to s349(1) Criminal Code 1899 (Qld). On 23 February 2023 the Applicant was sentenced to a period of 2 years 6 months imprisonment, suspended after 15 months.[3]
[3] R3 8, 137 and G7, 45–46
It is not in issue that the Applicant has a ‘substantial criminal record’. It is undisputed that the cancellation under s501(3A) was lawful and that the Applicant does not pass the character test.[4]
[4] Ex R5, Paragraphs 8 and 10 of Applicant’s amended Statement of Facts in Contention 28 November 2024
The hearing was held on 28 November 2024 and 3 December 2024 at the Tribunal’s Brisbane Registry. The Applicant was represented by Counsel, Mr R Lake. The Respondent was represented by Ms G Gutmann of Minter Ellison. The witnesses, other than Mr Schoemann, appeared in-person.
At the hearing, the Applicant gave evidence and was cross-examined. The following witnesses also gave evidence and were cross-examined:
a.the Applicant’s father, Jaron Christopher Wallis;
b.the Applicant’s step-mother, Michelle Tracey Wallis; and
c.Psychologist, Dr Johan Schoemann.
The following documents were marked as exhibits:
(a)Witness Statement – Cobain Wallis (Exhibit A3);
(b)Witness Statement - Michelle Wallis (Exhibit A4);
(c)Witness Statement - Jaron Wallis (Exhibit A5);
(d)Respondent’s Statement of Facts Issues and Contentions (Exhibit R1);
(e)Respondent’s Supplementary Documents (Exhibit R2);
(f)G-Docs (Exhibit R3);
(g)Curriculum Vitae of Dr Johan Schoemann (Exhibit R4); and
(h)Applicant’s Supplementary Statement of Facts and Issues in Contention dated 28 November 2024 (Exhibit R5).
Direction 110 (the Direction)
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal is mandated to comply with Direction 110 issued by the Minister under s 499(1) of the Migration Act.[5] (the Direction). The Direction commenced on 21 June 2024.[6]
[5] The Direction, cl 5.1(4); Migration Act, s 499(2A).
[6] The Direction, cl 2.
The guiding principles are set out in clause 5.2 of the Direction and the Tribunal must take into account the factors identified in clauses 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[7]
[7] The Direction, cl 6.
An objective of the Direction is to guide decision-makers in exercising powers under
ss 501 or 501CA of the Migration Act.[8] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in the Direction where relevant to the decision.[9][8] The Direction, para 5.1(4).
[9] The Direction, para 6.
Paragraph 5.2 of the Direction sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
1 Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2 The safety of the Australian Community is the highest priority of the Australian Government.
3 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.
4 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.
5 Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
6 With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
7 Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
8 The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[10]
[10] The Direction, para 5.2.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[11]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
[11] The Direction, para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[12]
(a) legal consequences of the decision;
(b) extent of impediments if removed; and
(c) impact on Australian business interests.
[12] The Direction, para 9.
Further guidance as to how a decision-maker is to apply the considerations in The Direction can be found in para 7, which provides that:
1 In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
2 The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
3 One or more primary considerations may outweigh other primary considerations.
This involves an evaluative process, requiring the Tribunal to identify factors for and against revoking the cancellation, and to undertake an assessment and evaluation of those factors leading to the formation of a view as to whether the cancellation should be revoked[13].
[13] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at [38] per North ACJ
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The question for determination by the Tribunal is whether the Reviewable Decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[14]
[14] Administrative Review Tribunal Act 2024 (Cth) ss 9, 54, 56(1)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024, s 3 and Sch 16 Item 24.
Section 501CA(4) confers ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker, in this case the Tribunal, is satisfied that there is ‘another reason’ why the cancellation should be revoked.[15] The majority of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs[16] noted that the assessment of whether there is, in fact, ‘another reason’ is to be undertaken by reference to the representations made by the applicant.
[15] Migration Act, s 501CA(4).
[16] Plaintiff M1/2021 v Minister for Home Affairs [2022] 275 CLR 582 at [22]. See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen (2024) 94 ALJR 594 at [6].
In his application for review, the Applicant contends that the most salient considerations are:
a.the protection of the Australian community;
b.strength, nature and duration of ties to Australia;
c.best interests of minor children.
The Respondent’s contentions do not differ markedly from those of the Applicant but emphasise the nature and seriousness of the offending and the centrality of domestic and family violence to the consideration of the circumstances of this case.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community.
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end 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, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[17]
[17] See also The Direction, para 8(1).
Paragraph 8.1(2) of The Direction then provides that 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.
The parties agree that the ‘protection of the Australian community’ consideration weighs against revocation of the Cancellation Decision. However, the Respondent contends the nature of the offending should be considered as very serious together with the absence of rehabilitation, limited remorse and lack of responsibility weigh heavily against revocation.[18] The Applicant concedes that, whilst rape is a serious offence, it was at the lower end of the scale and given the Applicant’s low risk of reoffending, it ought only to attract limited weight.[19]
[18] See Ex R1 Respondent’s SFIC at [38].
[19] See Ex R5 Applicant’s SFIC at [22] and [31].
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[20] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct to be considered very serious or serious, it does not limit the range of conduct that may be so regarded.[21]
[20] The Direction, para 8.1(1).
[21] The Direction, para 8.1.1(1)(a).
Paragraph 8.1.1(1) of the Direction relevantly provides:
1In 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 and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)………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;
the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;…..”
In considering the nature and seriousness of the conduct the following aspects of the sentencing remarks[22] are relevant:
a.The Applicant took advantage of a 'vulnerable' woman when she was asleep.
b.He penetrated her anus with his finger or fingers while she slept.
c.The Applicant and the victim had been in a consensual sexual relationship and, although they had broken up, they still maintained a causal sexual relationship. The act of engaging in anal penetration had never been part of that consensual relationship (G9, 139–140).
d.The conduct was described as 'simply reprehensible criminal conduct' (G9, 139) and found that it was both an offence of violence and domestic violence (G9, 140).
e.the Applicant's offending was 'a significant breach of the trusting relationship between the Applicant and [them]’ (G9, 140).
[22] Ex R3, G Documents at item G9 pages 138-141
The Judge continued:
What makes all of this horrible is that you knew, because she had complained to you, about issues that she had especially around anal sex, and notwithstanding, you just went ahead and did what you did in count 2, while she was sleeping and vulnerable to you. And you had gone to some considerable lengths to do what you did. I am prepared to accept that you had planned what you did. You retrieved the lubricant from another part of the unit. You used the lubricant on her. I am prepared to accept that you feigned surprised when she woke up and challenged you and I found your apologies in hearing the evidence and reading your messages, quite contrived. They were a little bit inconsistent to my mind.
And when you were claiming that she was either awake, or pretending to be asleep, you, in the messages offered to make it up to her, take her to dinner, told her you would not do it again. And when it was clear that she would not be swayed, you turned it all about yourself and said this was not good for you and that you were not going to have any further contact with her, which demonstrates some measure of self-interest and self-preservation.
As to the impact on the victim[23], the Judge also referred to the victim’s evidence that the offending 'literally disgusted me' and 'fucked me up'. She also stated that she has 'fucking trauma from that already'[24] Whilst the remarks did not specifically refer to her prior history, the victim gave evidence of a previous experience of sexual assault, by her grandfather, which the victim had disclosed to the Applicant early in their relationship.
[23] Paragraph 8.1.1(1)(d) of the Direction
[24] See R3 – G documents at G7, 62–63
It was a violent and sexual crime against a woman with whom the Applicant previously had an intimate relationship and, accordingly, it is also a crime that amounts to family violence[25].
[25] See paragraph 8.1.11)(i)–(iii) of the Direction
The Applicant was also sentenced to a term of imprisonment, which is a sentence of last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[26]
[26] See paragraph 8.1.1(1)(c) of the Direction; also see, for example, Pavey and Minister for Home Affairs [2019] AATA 4198 at [44] per Senior Member Tavoularis.
The Applicant, in his written and oral evidence, consistently denied that he was guilty of the offence for which he was convicted. The basis for this was that the complainant was pretending to be asleep whilst he committed the offence and only raised an objection during his digital penetration of her. Despite his innocence, he did not appeal the conviction.
The Applicant’s father, in cross-examination, also maintained that his son was not guilty of the offence, due to his inability to call relevant evidence during the trial, which inferentially was exculpatory. After the cessation of his cross-examination, he was given an opportunity to confer with the Applicant’s legal representative. There was no re-examination of him. The Applicant’s stepmother was less trenchant in her evidence but remarked she didn’t know if the offence had occurred as she was not present.
The above exchange (and the balance of the Applicant’s evidence) raised the issue of the extent to which it was open to the Tribunal to accept the Applicant’s alternate account of the surrounding events of his conviction and sentence for the rapes. The Tribunal 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 are necessarily based.
Where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the Minister’s decision, may not impugn or ‘go behind’ either the conviction or sentence. It has long been held that weight to be given to any convictions which may be proved in subsequent civil proceedings is a matter for the administrative decision-maker.[36] However, the Tribunal cannot accept the Applicant’s contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying his conviction or sentence.
Moreover, the Applicant cannot advance a factual position that undermines the relevant sentence which gave rise to his visa being cancelled as ‘another reason’ why that cancellation should be revoked.[27] For these reasons, the Tribunal rejects the Applicant’s evidence.
[27] Mickelberg v Director of Perth Mint[1986] WAR 365 at 371 (Burt CJ), 374 (Smith J) and 382 (Kennedy J); Minister for Immigration and Multicultural Affairs v Ali(2000) 106 FCR 313 at [41]; HZCP v Minister for Immigration and Border Protection(2019) 273 FCR 121 at [63], [68], [71], [76]-[79].
In the Tribunal’s view, the Applicant’s conviction for rape as an adult are properly characterised as ‘sexual crimes’ or ‘crimes of a violent nature against women or children’ or any of the other categories highlighted to be serious or very serious and the argument by the Applicant as to the length of sentence imposed is not a relevant factor
It is clear that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of the Direction. Such crimes would include serious drug offences. The Applicant’s offending falls within the categories outlined in par 8.1.1(1)(a) or 8.1.1(1)(b) of the Direction, in the Tribunal’s view the Applicant’s record of offending is serious for the reasons detailed in the sentencing remarks and the reasons above.
Therefore, having regard to the evidence to which paragraph 8.1.1 of the Direction are relevant and the comments and assessment of the offending in sentencing and by the courts generally, the Tribunal considers Applicant’s offending conduct to be serious and weighs substantially against revoking the Reviewable Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[28] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[29]
[28] The Direction, para 8.1.2(2)(a).
[29] The Direction, para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[30]
[30] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7 at [41] per Kenny J.
The Tribunal and superior courts have extensively considered the issues surrounding the risk under s 501(6)(d) of the Migration Act, from which paragraphs 8.1.2(1) and (2) of the Direction are drawn.[31]
[31] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431; Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424;GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Tribunal’s task is to ascertain the realistic level of risk posed by the Applicant at the time of its decision, with the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be “tolerated”’, such that it would be considered an unacceptable risk.
The Applicant has two main contentions: the first relates to the sentence imposed upon the Applicant and the second relates to the expert report of Mr Schoemann.
As to the first, the duration of and the suspension of his sentence after a period of fifteen months and operative for a period of three years. Counsel included the sentencing Judge’s reference to the decision of the Queensland Court of Appeal in R v Volante [2021] QCA 109.[32] There, Justice Ryan (with whom Sofronoff P and McMurdo JA agreed) held that in circumstances of deportation, the potential for meaningful parole supervision was illusory and hence a partial suspension was more appropriate.[33] Thus by extension, that the risk to the community could be managed within those parameters. Whilst that may be, risk to the community is but one aspect of a sentence and as the Judge remarked the Applicant was likely to be deported at the conclusion of his sentence.
[32]Transcript of proceedings 23 February 2023, G 139, line 18.
[33] At [81]
As to the second contention, a number of observations can be made of the written and oral evidence of Mr Schoemann:
a.The report[34] of an ‘assessment’ was sought by way of email (not produced) but with no formal written instructions as to the form or content of what was sought;
b.It was addressed to ‘The Sitting Judge, District Court of Queensland in Rockhampton’;
c.Mr Schoemann had a one hour interview with the Applicant which he recorded in December and reviewed it proximate to his report in April;
d.The only information provided to him apart from the interview with the Applicant was the QP9, a document authored by the Queensland Police Service as to information relating to the rape charges;
e.The Applicant denied the conduct the subject of the conviction and the history taken from him in relation to his offending is brief;
f.The report refers to the ‘expert code of conduct’ which, after some clarification, was the Australian Psychologists Association;
g.There were no written documents which he referred to in writing his report;
h.The first 2 of 4 paragraphs of his opinion refer to the Applicant’s fitness to stand trial – taking into account mental health and cognitive factors;[35]
i.The results of administration of relevant testing for sexual offenders issues, on the face of his report, were contradictory as to the Applicant’s risk level of re-offending – scoring as both average and below average risk of re-offending;[36]
j.The basis for some opinions formed by him in the report were not supported by adequate factual or reasoned analysis. One example being the apparent inconsistency as outlined in the preceding paragraph, there was an absence of the process of reasoning or reconciling of them.
[34] Ex G3 Page 220
[35] Page 22 Transcript
[36] Ex G3 Page 222
The Tribunal did not find Mr Schoemann’s evidence helpful. Apart from the above observations, his oral evidence was confusing and difficult to understand. As an example which relates to the psychometric tests administered by him and the uncertainty which remained even at the end of his oral evidence, as to whether the results were available to him when writing the report, he having confirmed he did not refer to any documents at that time.
Counsel for the Applicant properly conceded that there were ‘manifest inadequacies’ in the report and the results of the testing issues were unclear[37] but asked some weight be attributed to it. The Tribunal on the basis as outlined above places very little reliance on that evidence.
[37] Transcript P6 3/12/2024
As to other evidence as to the risk of re-offending, relevantly:
a.There is no relevant history of other criminal conduct and use of illicit drugs nor abuse of alcohol;
b.There was no conduct of concern whilst incarcerated or in detention; and
c.Whilst the Applicant’s family is a protective factor this must be tempered by their evidence as to their belief of the offending.
As to relevant issues of remorse and insight, the Applicant filed a statutory declaration dated 28 September 2023[38] in support of his request for revocation of the cancellation decision in which he claimed that he is 'truly sorry for any hurt I caused' to the victim. However that must be considered along with:
a.The Applicant, in the same statutory declaration, dismissing the seriousness of the offence by describing the conduct as '[w]e had sex' and claimed to be 'absolutely astounded' when charged with rape[39].
b.The Applicant pleading not guilty to the offence, and consenting on a 'without admission basis' to an apprehended domestic violence order on 19 July 2021[40].
c.The sentencing judge found that the Applicant's expressions of remorse were contrived and inconsistent with his other evidence, and his behaviour immediately after the offending conduct demonstrated 'some measure of self-interest and self-preservation'[41].
d.The Applicant, in routine mental health screening with International Health and Medical Services, reported that he 'never raped his girlfriend of 3 years and was in love with her'[42].
e.The Applicant did not undertake any form of mental health support or rehabilitation whilst incarcerated or in detention but it is accepted the opportunities were limited;
f.In his oral evidence he persisted with his denial and accepted that it was inconsistent with the utility of him attending rehabilitation or a sexual offenders course. He would undertake either so he would not happen again ‘for myself’ and be ‘accused’ in the future [43].
[38] Exhibit R3 at G15, page 178
[39] Exhibit R3 at G15, pages 175–176
[40] Exhibit R3 at G15, page 176
[41] Exhibit R3 at G9, page 140.
[42] Exhibit R2 S1 page 1
[43] Transcript P23 l38 28/11/2024
On the one hand, there are Applicant’s persistent denials of the offending, lack of insight as to the impact upon the victim together with the dismissive attitude to why he would attend any rehabilitation. On the other, he has had steady employment, is connected by sporting and socialising within the community and importantly has the strong support of his extended family (outlined in paragraph 37 above) are protective factors for the Applicant. In the Tribunal’s assessment, balancing those factors, there remains a real risk of reoffending and that it is a moderate degree of likelihood.
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs heavily against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of the Direction provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
Clause 4(1) of The Direction provides that, for the purposes of considering whether family violence has been committed under the Direction, ‘a member of the person’s family... includes a person who has, or has had, an intimate personal relationship with the relevant person’. This definition is inclusive. It also contrasts with the visa concept of a ‘member of the family unit’ or ‘member of the same family unit’, which are defined terms under the Migration Act and Regulations.
Clearly the Applicant and the victim had been and continued to be from time to time in an intimate relationship and thus would fulfil the definition, which was conceded by Counsel. The conviction was found to be a ‘domestic violence offence’ and the Applicant was sentenced on that basis as an aggravating factor.
I note that this offending is relevant to both the protection of the Australian community (already addressed) as well as the family violence considerations. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 196 the High Court said at [42]:
The same facts may be relevant to multiple different considerations. In the case of a matter made a mandatory consideration by a direction under s 499(1) of the Act, the matter to be considered may be described in a multiplicity of ways, such as by reference to a particular context, a particular purpose, or a particular assessment. Weighing the relevance or significance of the same facts by reference to those different considerations does not involve “repetitious weighing” or “double counting” in any illegitimate sense. It is doing no more than the direction, in terms, requires, and the direction is not inconsistent with the Act.
In respect of paragraph 8.2(3) of the Direction, the offending was serious as reflected in the sentencing remarks. There has not been any form of rehabilitation and given his attitude to why he would be motivated to attend leads to the view that he has developed no insight as to his the attitudes and conduct that caused his offending (paragraph 8.2(3)(c)) and, it follows that, he is unlikely to address factors which contributed to his conduct (paragraph 8.2(3)(c)(iii)).
The Applicant has not taken responsibility for his family violent conduct for the reasons outlined (paragraph 8.2(3)(c)(i)). While the Applicant has demonstrated limited remorse for his offending, the Minister submits that the Applicant has not demonstrated, in any meaningful way, that he understands the impact of his behaviour on the victim (paragraph 8.2(3)(c)(ii)) and that is accepted by the Tribunal.
The aspect of whether the Applicant had received a warning is not relevant.
As outlined this consideration weighs very heavily in favour of non-revocation of the Reviewable Decision.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of The Direction provides that:
1Decision-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.
2Where 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 non-citizen 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 Applicant has been resident in Australia since 30 August 2017, having arrived when he was a young child[44] and has no history of anti-social nor criminal conduct prior to his conviction (paragraph 8.3(2)(a)(i)).
[44] See Ex R3 at G27
The Applicant asserts his immediate family, consisting of his father, step-mother and step-brother, are permanents residents that reside in Australia and who would be impacted by the decision.[45] There is no doubt from the evidence of his father and step-mother that they and his step-brother Zane would be greatly impacted by his removal from Australia.
[45] See Ex R3 at G13 page 153; G14 pages 157-164; G15 pages 172–173; G21; G22.
His father refers to the “close bond” of the Applicant with his half-brother born in 2011 (and hence now 13 years old).18 He also refers to the ‘devastating impact’ on the family were the Applicant to be deported.19 The step-mother refers to the destruction of the family unit were the Applicant to be deported.20 She also refers to suffering a breakdown at work because of the stress of the charges faced by the Applicant,21 and of not knowing how she would cope ‘if we were to lose our son’.22
She emphasises the ‘strong family ties’23 the Applicant has in Emerald, which inferentially include his paternal grandparents.24 In particular she refers to the ‘great and positive influence’ of the Applicant with his half-brother Zayne.25
He has been gainfully employed since the age of 15. He has participated in his local soccer team[46] and through volunteer work in his local community contributed to the broader community[47] (paragraph 8.3(2)(a)(ii)).
[46] See Ex R3 at G14, page 167
[47] See Ex R3 at G14, page 167
He is no longer in the relationship with the partner he was with at the time of the delegate’s decision and he has formed another whilst in detention. There is nothing known of the status of that relationship.
Having considered the available evidence and the parties’ submissions, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia consideration weighs very significantly against the revocation of the Reviewable Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of The Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501 is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are 2 or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of the Direction goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[48]
(a)the nature and duration of the relationship between the child and the non-citizen, noting 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;
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[48] The Direction, paras 8.4(4)(a)-(h).
The Applicant does not have biological minor children of his own, but has identified the following minor children who will be affected by the decision (G14, 162):
(a) Zayne Wallis (step-brother), date of birth 30 March 2011 (aged 13);
(b) Kolby Hamilton (ex-partner's child), date of birth not provided;
(c) Bailey Wallis (cousin), date of birth 26 September 2002 (aged 22);
(d) Amity Wallis (cousin), date of birth not provided.The Minister accepts that it is in the best interests of the Applicant's step-brother that the cancellation decision be revoked. The Applicant claims to have a special bond with his step-brother and describes a typical sibling bond (G14, 163). However, the Minister submits that the Applicant does not play a parental role in the child's life (paragraph 8.4(4)(b)), he would be able to maintain virtual but much more limited contact with him if he returns to New Zealand (paragraph 8.4(4)(d)) and the step-brother is cared for his biological parents (paragraph 8.4(4)(e)). There is no evidence of the step-brother's views on this matter (paragraph8.4(4)(f)), but the Tribunal accepts that he has a good relationship with him 8.4(4)(g)–(h)).
The Applicant is no longer in a relationship with the mother of Kolby Hamilton and, accordingly, and the Applicant does not expect that the Applicant will have a contact with Kolby[49]. Therefore Kolby’s interests are not expected to be significantly affected in the event that the applicant left Australia permanently.
[49] Transcript pg 17, 28/11/2024
As to the children Bailey and Amity, they were very young when the Applicant was convicted, so he has had little contact with them[50]. Their interests are not expected to be significantly affected in the event the Applicant left Australia permanently.
[50] Transcript page 20 l 45
An overall assessment of the best interests of all minor children, this primary consideration weighs significantly in favour of revocation, based on the best interests of the Applicant’s step-brother.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.[51]
[51] The Direction, para 8.5(1).
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
The Direction notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in paragraphs 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in paragraph 5.2 of the Direction:
(a)Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government;
(b)Paragraph 5.2(3) says that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia; and
(c)Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community
The conviction for sexual assault against his partner is very serious and paragraphs 8.5(2)(a) and (c) of the Direction are engaged. The Tribunal finds that the community would expect that a person with this criminal offence has serious character concerns and should not continue to hold a visa:[52]
[52] The Direction paragraph 8.5(2)
In light of the extent and seriousness of the Applicant’s criminal offending, the expectations of the Australian community weighs significantly in favour of revocation of the Reviewable Decision.
Other considerations
Paragraph 9 of the Direction states:
1In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on Australian business interests.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[53]
[53] The Direction, para 9.1.
While this consideration in the Direction refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
(a)Unlawful status;
(b)The likelihood of becoming subject to detention and/or removal;[54]
(c)Refusal of other visa applications and cancellation of other visas;[55]
(d)A prohibition on applying for other visas;[56] and
(e)Periods of exclusion and special return criteria may apply.[57]
[54] Migration Act, ss 189, 196, 197C, 198.
[55] Migration Act, s 501F.
[56] Migration Act, s 501E.
[57] Migration Act, s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[58] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198[59]. No non-refoulement claims arise and as there is no evidence of any practical difficulty in effecting removal to New Zealand, I am satisfied that the legal consequences of a decision not to revoke the visa cancellation is that the Applicant will be removed to New Zealand.
[58] Migration Act, s 15.
[59] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the Applicant’s detention had at all times been lawful at [112]-[122].
Section 501E of the Act operates to very substantially restrict the Applicant’s ability to apply for another visa while in the migration zone. Furthermore, certain visas (indeed most classes of visa) are subject to special return criteria 5001(c) which provides for ‘permanent’ exclusion if a visa has previously been cancelled under s 501 of the Act and there has been no revocation under s 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under s 501 of the Act.
At the time of this decision, the law as to whether the operation of special return criterion 5001(c) amounts to a legal consequence of the decision appears to be somewhat unsettled. In this regard, the decision of Taulahi v Minister for Immigration and Border Protection (2016) 246 FCR 146 and more recently Rano v Minister for Home Affairs, Minister for Cyber Security[2024] FCA 1003 are relevant.
While the latter case of Rano has been appealed by the Respondent, currently it is binding authority. The Court concluded that the Applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa and accordingly was a consideration the Minister was bound to take into account (at [14]). It was recognised that the outcome was an obvious outcome and its intention is clear from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated.
The practical operation of these provisions are currently understood to amount to a legal consequence of a decision not to revoke a visa cancellation. In any event, the Tribunal has taken them into account. The Tribunal attached weight to the Applicant’s concerns regarding maintaining contact with his immediate family, including minor children in the course of considering the applicable considerations. I do recognise the way s 501E and special return criterion 5001 operate.
The Tribunal considers this other consideration carries some weight in favour of the Applicant.
Extent of impediments if removed
Paragraph 9.2 of the Direction provides that taking into account the matters identified in paras 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
The matters identified under paragraphs 9.2(1)(a), (b) and (c) are:
(a)the [Applicant’s] age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to [the Applicant] in their country.
The Applicant is a young man with no adverse health issues. Whilst he has resided in Australia since being a young child, there are no cultural, language or employment issues raised as to why a return to New Zealand would pose significant difficulties in particular for him. His step-mother has family there but the Applicant does not know them. His father, in an earlier statutory declaration, had deposed to the Applicant not having to face alone a return to New Zealand, but later retreated from it.[60] It is accepted by the Tribunal that it would be disruptive to the Applicant’s family with Zayne in school and their employment to relocate to New Zealand. Equally, from their oral and written evidence, they would undoubtedly assist the Applicant as much as possible.
[60] Exhibit A5 - Paragraphs 8-11
This factor weighs significantly in his favour for revocation of the Reviewable Decision.
Impact on Australian business interests
Paragraph 9.3 of the Direction states:
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.
The Applicant did not suggest that his removal from Australia would adversely impact Australian business interests.
There is also no evidence the Applicant is involved in the delivery of a major project or important service in Australia.
The Tribunal considers this other consideration is neutral.
CONCLUSION
The Applicant does not pass the character test under s 501(6) of the Migration Act. Therefore, the task of the Tribunal is to synthesise the relevant circumstances to reach a single dispositive finding as to whether there is ‘another reason’ why the Reviewable Decision ought to be revoked.
The Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[61] said:
[t]he real burden of the task to be undertaken by a decision-maker who must comply with the Direction [the precursor Direction 90] is to bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together. [footnotes omitted]
[61] [2023] FCAFC 138
The Court at paragraph [38] is particularly instructive as to that process:
The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.
The primary consideration of the protection of the Australian community weighs substantially against revocation of the Reviewable Decision.
The primary consideration of family violence weighs very heavily against revocation of the Reviewable Decision.
The strength, nature and duration of the Applicant’s ties to Australia weighs significantly against of revocation of the Reviewable Decision.
The best interests of the children identified as being impacted by the decision weigh moderately in favour of revocation of the Reviewable Decision.
The expectations of the Australian community would be that the visa ought to be cancelled and therefore this consideration weighs significantly against revocation of the Reviewable Decision.
In relation to the relevant ‘other considerations’ identified in the Direction, the Tribunal finds that:
a.the legal consequences of the decision is given some weight in favour of revocation of the Reviewable decision;
b.the extent of impediments, if removed, weigh significantly in favour of revocation of the Reviewable Decision; and
c.the impact on Australian businesses is a neutral factor in the Applicant’s circumstances.
In clear terms, paragraph 7(2) of the Direction states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
Having weighed the considerations, the Tribunal finds that the considerations weighing in favour of revocation of the Reviewable Decision, being his strength and duration of ties, the impact on children, the legal consequences of the decision and the impediments are outweighed by those against revocation of the Reviewable Decision, being the protection of the Australian community, family violence and expectations of the Australian community.
In conclusion, having regard to all of the considerations in the Direction, I am not satisfied that there is ‘another reason’ to revoke the Reviewable Decision.
The correct or preferable decision is to affirm the decision under review.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 18 September 2024 to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4)(b)(ii) of the Migration Act is affirmed.
Dates of hearing: 28 November 2024 and 4 December 2024 Solicitors for the Applicant:
Counsel for the Applicant:
Wendy Mary Anne Maitland of The Rockhampton Law Practice
Mr Robert Lake
Solicitors for the Respondent: Gabrielle Gutmann of Minter Ellison
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