Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 1208

Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1208 (11 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1045
Re:James Christopher Wightman
APPLICANT

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

DECISION
Tribunal:Deputy President Boyle
Date:11 May 2021
Place:Perth

The decision of the delegate of the Respondent dated 15 February 2021 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class BS Subclass 801 Partner visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
...[SGD]..............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – Applicant fails the character test – two-day rule (ss 500(6H) and 500(6J) of the Migration Act) – whether there is ‘another reason’ to revoke the mandatory cancellation – Direction 90 considered – Applicant sentenced to three years imprisonment for stealing as a servant – statutory construction of Direction 90 para 8.1.1(1)(b)(ii) – doctrine of ejusdem generis applied – corporate employer provider was not a vulnerable person for the purposes of Direction 90 para 8.1.1(1)(b)(ii) – risk of reoffending very low – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6H), 500(6J), 500(6L), 500(6L)(c), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
FYBR v Minister for Home Affairs [2019] FCAFC 185
Goldie v Minister for Immigration and Multicultural Affairs (2001) FCR 378
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Mordachai v Minister for Immigration and Citizenship [2011] FCA 986
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) 74 AAR 545
Umi v Minister for Home Affairs [2019] FCA 2148
Umi v Minister for Home Affairs [2020] FCAFC 101
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 2 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) – art 3, preamble
D Pearce, Statutory Interpretation in Australia, (LexisNexis Butterworths, 9th ed, 2019) – para 4.34
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)
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 4(1), 5.1, 5.1(3), 5.2, 6, 7, 8, 8.1, 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 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)(b), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(ii), 8.2, 8.2(2)(b), 8.3, 8.3(4), 8(4), 8.4, 8.4(1), 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, 9.2, 9.3, 9.4, 9.4.1, 9.4.2
REASONS FOR DECISION
Deputy President Boyle
11 May 2021

The Applicant seeks the review of the decision of a delegate of the Respondent dated 15 February 2021[1] under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class BS Subclass 801 Partner visa. The Applicant was notified of the decision not to revoke the cancellation of his visa on 16 February 2021.[2]
[1] R1, G4.
[2] R1, G3/13.
The Applicant’s visa was cancelled because the Applicant 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 for review,[3] lodged with the Administrative Appeals Tribunal (AAT) on 23 February 2021, was lodged within the time prescribed by s 500(6B) of the Act and was made in accordance with s 500(1)(ba) of the Act which allows applications to be made to the AAT for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa. The Tribunal is satisfied that it has jurisdiction to review the decision.
[3] R1, G2.
THE ISSUE
The Applicant does not dispute that he does not pass the character test.[4] The Tribunal, in any event, so finds. Accordingly, the issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the original decision under s 501(3A) to cancel the visa. That will require determination under s 501CA(4)(b)(ii) of the Act as to whether there is “another reason” why the decision to cancel the visa should be revoked.
[4] Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) para [3].
BACKGROUND
The Applicant is a 30-year-old citizen of Zambia who arrived in Australia on 26 January 2010 as the holder of a Student (Class TU) (Subclass 572) visa.
On 27 March 2020 the Applicant was convicted and sentenced to a term of imprisonment for three years for stealing as a servant. The offending took place between 5 January 2015 and 14 March 2018.[5]
[5] R1, G8/35.
On 8 May 2020 the Applicant’s visa was cancelled by a delegate of the Respondent pursuant to s 501(3A) of the Act. At that time, the Applicant held a Partner (Residence) (Class BS) (subclass 801) visa for which he had applied on 13 March 2013 and which had been granted on 29 January 2016.
During the period of offending, the Applicant had been employed as a payroll clerk at an aged care facility. The Applicant used his knowledge of the payroll system to add and adjust overtime hours of four employees known to him. Those employees received additional wages for hours that they had not worked. The recipients of the additional wages transferred and deposited monies into the Applicant’s personal bank account. The Applicant estimates that he received approximately $146,000 in payments from his co-offenders.[6] A total sum of $326,413 was stolen from the Applicant’s employer.
[6] A1, A21/82.
The Applicant’s offending was uncovered when his employer received an anonymous letter alleging that four employees had been receiving monies to which they were not entitled. Upon receiving that anonymous complaint, the employer commenced an investigation and uncovered the Applicant’s wrongdoing. The Applicant’s employment was suspended during the investigation and terminated in March 2018.[7]
[7] Applicant’s SFIC para 15 (as corrected at hearing).
The Applicant’s former employer referred the matter to WA Police on 10 April 2018. On 20 December 2018 Police interviewed the Applicant about his involvement in the scheme. The Applicant declined to answer some of the questions put to him by police about his involvement in the scheme (as was his right).
The Applicant was charged with stealing as a servant to which he pleaded guilty in March 2019,[8] and was remanded for sentencing by the District Court of Western Australia. In sentencing the Applicant on 27 March 2020, MacLean DCJ noted that the Applicant had “entered a plea of guilty at the very first opportunity”.[9] This is the Applicant’s only criminal conviction.
[8] R2, S15/33.
[9] R1, G8/40.
On 27 March 2020 the Applicant was sentenced to a term of imprisonment of three years with parole eligibility. The Applicant commenced his period of imprisonment immediately on being sentenced and he has remained imprisoned since that time. The Respondent concedes that during his imprisonment the Applicant has generally behaved without incident and has received positive reports and security assessment.[10]
[10] Respondent’s SFIC para [13].
The Applicant met his now-estranged wife, Ms B, in 2011. They began living together in 2012 and were married in March 2013.[11] The Applicant and Ms B ceased cohabiting in December 2016.[12] The Applicant and Ms B have three children together, two sons who are seven years old and eight years old and a daughter who is five years old. The Applicant also has two other natural children, a four-year old son to his co-accused who lives in Australia and a child in Zambia who would be eight or nine years old. He is also the stepfather of Ms B’s three children from a previous relationship. One of those stepchildren is a minor, aged 16.
[11] A1, A1.
[12] transcript at 64.
THE HEARING AND THE EVIDENCE
The application was heard on 29 April 2021. The Applicant was represented by Ms J Edis of Putt Legal and the Respondent was represented by Ms C I Taggart instructed by MinterEllison. The only witness to give evidence at the hearing was the Applicant.
The following documents were admitted into evidence:
(a)Bundle of documents lodged by the Applicant on 1 April 2021 (Exhibit A1);
(b)Pages from the passport of the Applicant’s sister, received by the Tribunal 22 April 2021 (Exhibit A2);
(c)Department of Home Affairs document dated 4 June 2020, advising that the Applicant’s sister’s partner visa had been granted (Exhibit A3);
(d)Hall & Prior Aged Care Group webpage extract (Exhibit A4);
(e)G Documents filed on 10 March 2021 (Exhibit R1); and
(f)Supplementary G Documents received by the Tribunal 14 April 2021 (Exhibit R2).
In addition to the above documents, the Tribunal had before it:
(a)The Applicant’s Statement of Facts, Issues and Contentions dated 6 April 2021 (Applicant’s SFIC);
(b)The Respondent’s Statement of Facts, Issues and Contentions dated 16 April 2021 (Respondent’s SFIC); and
(c)The Applicant’s submissions in reply dated 21 April 2021 (Applicant’s reply).
On Tuesday 27 April 2021, the AAT registry and the Respondent’s lawyers received two documents from the Applicant’s lawyers described respectively as “Outline of evidence” of the Applicant’s sister and “Outline of evidence” of the Applicant’s brother. At the commencement of the hearing on 29 April 2021, the Applicant’s counsel made an application for these two documents to be admitted into evidence. Counsel advised that it was the Applicant’s intention to call his sister and brother to give evidence to the effect of the outlines. Objection was taken by the Respondent’s counsel on the basis that, under s 500(6H) of the Act, “… the Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least 2 business days before the day the Tribunal holds a hearing” and on the basis that, under s 500(6J), “… the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing”.
The prohibitions imposed on the Tribunal under ss 500(6J) and 500(6L) are unqualified. It was, as it had to be, conceded by the Applicant’s counsel that the documents which she sought to be admitted and the oral evidence outlined therein could not be taken into account if the hearing of the application proceeded on 29 April 2021.[13] For various logistical reasons, including the availability of facilities at the Federal Court (where applications by imprisoned applicants are heard), and the Tribunal’s availability, the hearing could not be adjourned. The substantive decision in this matter must be made by 11 May 2021 to avoid the operation of the 84-day rule under s 500(6L)(c) of the Act. The Tribunal notes the comments of the Full Court in Umi v Minister for Home Affairs[14] at [33], approving the primary judge’s approach at [56]–[58] and [60] of her judgment.[15]
[13] See Goldie v Minister for Immigration and Multicultural Affairs (2001) FCR 378 at 389-390; Mordachai v Minister for Immigration and Citizenship [2011] FCA 986.
[14] Umi v Minister for Home Affairs [2020] FCAFC 101.
[15] Umi v Minister for Home Affairs [2019] FCA 2148.
The necessity for all statements of evidence and documents to be provided to the Minister’s legal representatives at least two business days before the listed hearing date was explained in detail to the Applicant’s lawyer at the directions hearing on 3 March 2021, as well as in the material forwarded by the AAT to the Applicant following the directions hearing. Ms Edis confirmed that she understood the necessity to provide the documents at least two business days before the hearing but advised that her client had been unable to arrange for this to occur within the required time.[16]
[16] transcript at 3–4.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act 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.
Relevantly, a “substantial criminal record” is 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;
…
Section 501CA of the Act 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 Respondent, 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). 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).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
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. 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 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 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 (in this case, the Tribunal) must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are applicable) in order to determine whether the mandatory cancellation of the visa should be revoked.
Paragraph 8 of Direction 90 sets out the primary considerations to be taken into account in making a decision under s 501CA(4) of the Act. They are:
(1) protection of the Australian community;
(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 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(1) In making a decision under section ... 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.
Guidance in relation to taking the relevant considerations 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.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED? (S 501(CA(4)(B)(II))
PRIMARY CONSIDERATIONS
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, , 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 Applicant’s sole conviction is that for stealing as a servant. The circumstances of the Applicant’s offending are not materially in dispute (see [8] above). They were read out by the prosecutor (and agreed by the Applicant’s counsel) at the sentencing on 27 March 2020 as follows:
… In respect of Mr Wightman, the facts are, from August 2012, the offender was employed as an administration officer/payroll clerk at Hall & Prior Health and Aged Care Group. The offender worked at Fresh Fields Aged Care Facility located at 62 Gwenyfred Road, Kensington.
The offender utilised his knowledge of the payroll system to add and adjust overtime hours for employees known to him. These employees received additional wages for hours that they had not worked, which is supported by employee timesheets. The recipients to the additional wages transferred and deposited moneys into the offender's personal bank account. From 6 January 2015 to 13 March 2018, a total of $357 - $107 was stolen from Hall & Prior Health and Aged Care Group. On Thursday, 20 December 2018, the offender attended the Cannington Police Station where he was arrested and interviewed.[17]
[17] A1, A22/96–7.
MacLean DCJ in sentencing the Applicant made the following comments:
In your case, Mr Wightman, you have accepted, by your plea of guilty, that between 11 – I’m sorry – between 5 January 2015 and 14 March 2018, that you stole the sum of $326,413 while you were being a servant of Freshfields Aged Care and that the money came into your possession on account of your employment.
…
In each instance, that is with regard to you, Mr Wightman, and with regard to you, Ms [co-accused], the material facts have been read out by counsel for the State, and they have been admitted on your behalf by your counsel.
…
The offence of stealing as a servant is serious. It involves the abuse of a position of trust with a consequence that significant weight is accorded to general deterrence with an associated reduction in the weight given to personal antecedents.
…
Now, in the instance that involves you, Mr Wightman, the offence is obviously serious. The offending was protracted, that is, it took place over an extended period of time, namely between 5 January 2015 and 4 March 2018. It also involves a significant sum of money, namely, the amount of $326,413.
…
There is also a further distinction between you which marks Mr Wightman’s conduct as being more serious than Ms [co-accused]’s conduct and that distinction arises by reason of the role that Mr Wightman held within the organisation. He was responsible for recording people’s pay entitlements and for managing the system and the scheme could not have taken place if it were not for Mr Wightman’s involvement in it.
…
… in terms of the degree of criminality between the parties, it is clear that the originator of the idea was Mr Wightman and that he invited Ms [co-accused] to participate. That does not stand as a mitigating factor for Ms [co-accused], but rather an aggravating factor insofar as Wightman goes …
…
Insofar as Mr Wightman's personal circumstances go, the pre-sentence report records that he was 28 years of age at the time of the pre-sentence report and necessarily a little younger at the time that he embarked upon this criminal enterprise. The embarkation of it by him took place in January of 2015, which made him 24 at the time that he embarked upon it. So for sentencing purposes, he might certainly be considered as a young person, at least at the time that he embarked upon this criminal enterprise, although the benefits of youth dissipated as the scheme went on for a period of three years and two months.
However, he is 28 years of age, was 24 at the time that he embarked upon this enterprise and I do consider that he does have the benefit of youth insofar as mitigating circumstances go. With regard to you, Mr Wightman, you do present as an absolute first offender and that is also an important mitigating factor. I do accept the submissions that were made on your behalf by Mr Hofmann and as are confirmed in the pre-sentence report that not only are you a person who has no criminal convictions in this country or is there any evidence of any criminal conviction in another, but relevantly, you came to this country from Zambia in circumstances which constituted a considerable deprivation on your part as a younger person.
And that deprivation included not only the requirement for you to leave the country of your origin, but being put to work at an early age and your father being absent during your childhood and visiting on a limited basis. I also accept that insofar as your personal financial circumstances go that they were being described as insubstantial and that notwithstanding the commission of these offences, you have not advanced yourself in any material sense and remain indebted in the amount of $40,000. Not that that can really stand as a factor of any particular mitigation.
Most importantly is the fact that you do have as I accept the detriment of having a deprived background. You do have the benefit of youth. You do have the benefit of being an absolute first offender. And you have entered a plea of guilty at the very first opportunity and you have demonstrated by way of that plea of guilty insight and remorse. And furthermore you do have as I described in the course of discussion with your counsel [an] enterprising nature and that enterprising nature manifested itself most impressively by your continued conduct in working, notwithstanding disclosure of these offences.
And that capacity to remain employed is consistent with a person that does have a capacity to rehabilitate themselves and to work, that being a not surprising experience as those people who are at work are generally less likely to offend. Although in your case that observation might need to be tempered given the very serious offending that took place by reason of your employment, but by reason of your employment in a position of trust where you had a capacity to manipulate the payroll system.
…
In each case, I accept that you have accepted responsibility for your conduct and in each case I am satisfied that you do have very good prospects for rehabilitation…
Likewise with you, Mr Wightman, I am satisfied that you also have good prospects for rehabilitation. You are a younger man. You do have an enterprising capacity for work and for continuing to work.
In both cases, I’m satisfied that there does not loom large a risk of reoffending having regard to the qualities that I have referred to.
…
The victim is the same in both cases, and the victim was a vulnerable victim in circumstances where it was entitled to respect that its employees would not take advantage of it by working in concert to defraud it.
So the victim was certainly a vulnerable victim, having regard to those facts and notwithstanding the detail as to the insured and the submissions as to essential services and all the rest of it, there are demonstrably adverse consequences by reason of the large scale of the offending insofar as the ultimate sum of money taken by you, Mr Wightman, that’s $326,413…[18]
[18] R1, G8.
Parties’ Submissions
The Applicant’s SFIC contend as follows in relation to the seriousness of the Applicant’s offending and conduct:
(a)The Applicant is a first offender.
(b)He directed the bulk of the proceeds of his offending towards his family’s living expenses and car loan repayments.
(c)The Applicant was on a salary of about $45,000 (gross) at the time he started offending. His wife was not employed. He was not making ends meet. He had five young children living with him.
(d)The sentencing judge expressly acknowledged the Applicant’s insight into and remorse for his criminal offending and his enterprising nature.
(e)As acknowledged by the sentencing judge, the Applicant arrived in Australia “in circumstances of considerable deprivation” and that had caused him detriment.
(f)The Applicant acknowledges that the nature of his offending is serious; he took advantage of his access to the payroll system, over an extended period, and played a pivotal role in a joint criminal enterprise with other employees.
(g)The sentence imposed on the Applicant is at the lower end of the scale, given it involved prolonged offending conduct and a breach of trust.
(h)The Applicant accepts that his actions were “selfish” and a result of “poor reasoning ability”. The Applicant explains that his offending was “centred on [supporting his] six children and [his] mother and other extended family back in Zambia”; he says that “a single income was just never close to being enough for us to survive”. He does not seek to excuse his conduct; rather, he provides an explanation for why he did what he did. It was conceded, via his criminal lawyer in the course of sentencing submissions, that the behaviour involved “an appalling lack of judgment”.
(i)Having accepted the seriousness of the Applicant’s offending behaviour, his crime did not involve violence, family violence, sexual misconduct, nor did it relate to a female, child or vulnerable victim per se. In fact, the aggrieved employer was repaid the stolen sum in full, as well as the investigation costs, via an insurance claim.
(j)This is the first time that the Applicant has ever engaged in criminal conduct, he has not previously received a warning about the consequences of criminal offending on his migration status.
The Respondent’s SFIC submitted that:
(a)The Applicant acknowledges that his offending was serious but appears to effectively minimise or explain away the seriousness of that offending.
(b)The Applicant committed a crime against a vulnerable victim where he held a position of trust.
(c)The Applicant committed his offending over a period of three or so years over which time the seriousness of the offending steadily increased both because of its duration and because the Applicant expanded the scheme to include additional offenders.
(d)The expansion of that scheme had a direct benefit to the Applicant and his ability to profit from his crime.
(e)The Applicant began his offending when he had the opportunity to do so. Having realised that opportunity for wrongdoing, the Applicant fully exploited it.
(f)The offending only stopped because the Applicant’s wrongdoing was discovered and his ability to continue offending ceased.
(g)Having been discovered, the Applicant sought to deny and hide his offending when confronted by his employer and then by WA Police.
(h)The Applicant’s repeated reliance upon the fact that he did not enjoy the full benefit of all the stolen funds, and that he was not able to discharge his debts with those funds is, at best, irrelevant.
(i)The fact that the employer was insured and able to recover lost funds is not a matter which aids the Applicant.
(j)The Applicant has sought to provide an explanation for his offending which places him in a sympathetic light: a man pushed by financial desperation to steal funds in order to support his family. It is apparent from an analysis of the available evidence that that explanation is self-serving and does not frankly set out the true position that the Applicant was in.
(k)The Applicant did not disclose to the Department the existence of his son with his co-accused.
(l)He presented a picture of financial responsibility and obligation which is not borne out by his own financial information and did not reveal the fact of his separation from Ms B, the mother of his three older children, or the apparent exposure to, and risk of, harm that the children had experienced previously.
(m)It cannot be accepted that the Applicant has engaged with the Department with frankness and candour.
The Applicant’s reply submitted as follows:
(a)The Applicant did not begin his offending conduct adventitiously. The Applicant commenced work for his employer in August 2012, was appointed to the payroll clerk position in around November 2013 and did not commence offending until January 2015.
(b)In relation to the allegation that he misled police when first interviewed, the Applicant was not forthcoming with information, however, at no time did he actively seek to conceal his offending.
(c)The Applicant’s former employer, the victim of his stealing, was not a vulnerable member of the community. It suffered no loss because it was insured. Accordingly, it should not be characterised as a vulnerable victim for the purposes of Direction 90.
(d)In relation to what the Applicant did with the stolen money, there is no indication that the Applicant was leading anything other than a very ordinary lifestyle. When the Applicant was arrested, he owned no assets which became the subject of criminal confiscation.
Consideration
This first primary consideration: Protection of the Australian community from criminal or other serious conduct, requires the decision-maker to look at “the non-citizen’s criminal offending or other conduct to date”[19] (emphasis added). The only “other conduct” identified by the Respondent as relevant is the possible engagement by the Applicant in family violence. That issue is dealt with in the second primary consideration at [59]–[66] below.
[19] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” para 8.1.1(1).
In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, the Tribunal finds that:
(a)(paragraph 8.1.1(1)(a)) – the single crime of which the Applicant has been convicted was not a crime of violence or of a sexual nature. In relation to the detected incident reports and restraining orders referred to at [59] to [66] below, the Tribunal is not satisfied that they show that the Applicant has been involved in the perpetration of family violence for the purposes of paragraph 8.2(2)(b) of Direction 90 or otherwise. Apart from the one incident in which the Applicant admits to having “moved” Ms B so that he could enter their home (see [64] below), there was no evidence of the Applicant engaging in any conduct which could be characterised as family violence.
(b)(paragraph 8.1.1(1)(b)) – the Applicant’s conduct does not come within the scope of sub-paras (i), (iii) and (iv) of this consideration. The Respondent, however, argues that the stealing as a servant was committed against a vulnerable member of the community (see [37](b) above). The Respondent’s argument, which was further explained at the hearing,[20] was that because of his position of being in control of certain financial functions, the Applicant was in a position of trust which he could, and did, abuse to his benefit, making his employer vulnerable to a breach of trust of the type perpetrated by the Applicant.
[20] transcript at 19, 80–83.
The Applicant responded to that argument by submitting that the Applicant’s employer was not a vulnerable member of the community because it was insured and suffered no financial loss.
The Tribunal does not accept the Applicant’s argument. The fact that a victim might be able to recover its financial loss under a policy of insurance does not mean that it was not vulnerable. The relevant vulnerability is to the commission of the crime and the consequences that flow from the crime by reason of the particular characteristics of the victim. Whether an individual is covered by insurance against a particular type of loss has nothing to do with whether the individual was, in the first instance, vulnerable or not.
The Tribunal, however, also does not accept the Respondent’s argument. The victim in this case, Hall & Prior Aged Care Group, is an (apparently) large, corporate entity with 27 aged care homes operating in multiple Australian states.[21] Sub-paragraph 8.1.1(1)(b)(ii) of Direction 90 describes a genus of members of the community, not a factual situation that a member of the community, even a corporate member, may find himself, herself or itself in. The claimed vulnerability described by the Respondent does not arise out of the particular characteristics of the member of the community (such as age or disability), but rather out of the victim’s exposure to a crime being committed because of the position that the Applicant held. If vulnerability was simply determined by whether a person was susceptible to a crime being committed against them, then in every case when a crime was committed the victim would be “vulnerable”. The very fact that a crime was committed would establish vulnerability. Financial crimes of the sort committed by the Applicant against corporations often, if not invariably, involve the exploitation of weaknesses in corporations’ financial systems. That, however, does mean that the corporations are “vulnerable members of the community”. It simply means that they are exposed to that sort of crime.
[21] A4.
Further, the use of examples such as those in parentheses in legislative instruments (as is the case with this sub-paragraph) gives context to and assists in the construction of the more general words. In his leading text, Statutory Interpretation in Australia,[22] Pearce DC (at para 4.34) explains the operation ejusdem generis rule as follows:
[22] D Pearce, Statutory Interpretation in Australia, (LexisNexis Butterworths, 9^th ed, 2019).
A drafter may well not wish to spell out at length all the kinds of things or types of conduct to which an Act may apply. He or she may rest on the assumption that, having indicated the main specific matters or conduct within a broad category to which it is to apply, any general words will be read down to embrace only things or conduct falling within that category. So in specifying the animals that may be carried on a ferry, the drafter may refer to ‘horses, cows, sheep and other animals’. It would be regarded as an improper reading of the Act if it were suggested that a tiger fell within the words ‘other animals’. This is the classic example of the ejusdem generis rule – the general words are limited to apply only to animals of the same kind as those specifically mentioned. It is another way of saying that the words derive meaning from the context in which they appear.
It does not matter that the general words precede the more specific words or whether the more specific words precede the general words. As the above passage indicates, the point is that “words derive meaning from the context in which they appear”. In the present case, the more specific words in parentheses characterise the genus of relevant members of the community by reference to their inherent, personal characteristics which make them more vulnerable than other members of the community, not the circumstances in which the crime is committed against them. Accordingly, while the corporate victim of the Applicant’s crime in this case was exposed to the crime that the Applicant committed because of the position that the Applicant held, that, in the Tribunal’s view does not make the victim of the Applicant’s crime a “vulnerable member of the community” for the purposes of this sub-paragraph. The Tribunal appreciates that in sentencing the Applicant, MacLean DCJ referred to the victim as being “vulnerable” (see [35] above). His Honour was referring to the employer’s vulnerability “…in circumstances where it was entitled to respect [presumably expect] that its employees would not take advantage of it by working in concert to defraud it”. He was not using the term vulnerable in the sense of the victim being a vulnerable member of the community of the genus described in sub-para 8.1.1(1)(b)(ii).
(c)(paragraph 8.1.1(1)(c)) – As MacLean DCJ noted in imposing the three-year sentence of imprisonment, the offence is obviously serious. It was protracted, in that it took place over an extended period, namely between 5 January 2015 and 4 March 2018, and it involved a significant sum of money, $326,413. The maximum sentence for the offence of stealing as a servant is a term of imprisonment for 10 years. While the sentence of three years imposed by the Court was at the lower end of the scale, allowing for the discount attaching to the Applicant’s early guilty plea, it is still a significant sentence reflecting the seriousness with which the sentencing judge viewed the Applicant’s offending.
(d)(paragraph 8.1.1(1)(d)) – While the Applicant was convicted of a single offence, the Tribunal agrees with the Respondent’s characterisation of there being a trend of increasing seriousness because over the three-year period during which the offending occurred, the Applicant expanded the scheme to include at least one additional offender. That only stopped when the scheme was exposed.
(e)(paragraph 8.1.1(1)(e)) – Insofar as this sub-paragraph may have application, the Tribunal repeats the observations made in (d) above.
(f)(paragraph 8.1.1(1)(f)) – The Respondent argues that the Applicant did not disclose the existence of his son with his co-accused to the Department, further, that he presented a picture of financial responsibility and obligation which is not borne out by his own financial information and, finally, that he did not reveal the fact of his separation from Ms B. The Applicant was cross-examined at length on these issues. The Applicant’s explanation for why he failed to disclose the existence of his son by his co-accused was that he thought that the Department already knew about that child.[23] That explanation was not convincing. Insofar as it may have been the case that the Department was aware of that child, the Department would have had such knowledge in a completely different context. The Applicant’s failure to disclose that child’s existence in his Personal Circumstances Form[24] is even more inexplicable given that one of the primary considerations that the delegate was obliged to consider was the best interests of the Applicant’s minor children. Failing to nominate this child as one of his minor children is, in the context of submissions for the exercise of the discretion under s 501CA(4) of the Act, counter-productive. One possible explanation for the Applicant’s non-disclosure of this child may have been that the child’s birth, as a result of an affair with a woman other than his partner, would have been inconsistent with him being in a stable relationship with his partner for the purposes of the grant of his permanent partner visa. That, however, is a matter of speculation and the Tribunal makes no finding in that regard other than accepting the Respondent’s submission that the Applicant has not been frank in his dealings with the Department. The information that the Applicant provided to the Department through his request for revocation[25] and the personal circumstances form[26] submitted therewith were misleading.
[23] transcript at 65–6 and 74.
[24] R1, G12.
[25] R1, G11.
[26] R1, G12.
The second claimed act of the Applicant providing false or misleading information is his claim to having been the sole or primary provider of financial support for his children with Ms B. He had produced bank statements to support that claim.[27] The Applicant was cross-examined at length on these bank statements and his claim to having been the sole financial provider for Ms B and their children together.[28] In fairness to the Applicant, the assertion that he had claimed to be the sole financial provider for Ms B and their children (if that was the Respondent’s assertion) may be overstated. The statement that he made in several places[29] was that he was “the sole income earner in our family”. It was pointed out to the Applicant in cross-examination that Ms B had, during the relevant period, been in receipt of Centrelink payments.[30] The Applicant himself had said in his examination-in-chief that Ms B “has always been in [sic] Centrelink benefits”.[31] The Tribunal accepts that, while perhaps not elegantly expressed, what the Applicant was saying was that when he and Ms B were together and after their separation, he was the only one earning a wage. The Tribunal does not consider that these statements by the Applicant can be elevated to him providing false or misleading information to the Department. As was demonstrated through his cross-examination, the information that the Applicant had himself provided through the 179 pages of bank statements,[32] the sample payslips[33] and PAYG payment summaries[34] disclosed that Ms B had made some contributions to daily living costs such as rent, uniforms expenses and car running costs.
[27] A1, A28–A30/159–338.
[28] transcript at 56–63.
[29] See for example, A1, A1 para [21].
[30] transcript at 56.
[31] transcript at 44.
[32] A1, A28–A30.
[33] A1, A32.
[34] A1, A33.
The final claimed incident of the Applicant providing false or misleading information relied on by the Respondent is the Applicant’s failure to disclose that he had separated from Ms B. There is substance to the Respondent’s claim. In the attachment[35] answering the question at para 7 of the personal circumstances form[36] submitted to the Department in June 2020, the Applicant made the following statements:
[35] A1, A2/5–7.
[36] R1, G12.
Later in 2012 I moved in with [Ms B] as our relationship grew stronger as she eventually fell pregnant with our first child… [Ms B] was a single parent of 3 girls… The girls are all grown up now with [omitted] who’s the oldest moved [sic] out of home earlier this year.
…
We are due to do some more travelling as soon as I get through my prison term as I owe the family a holiday for my selfish actions.
We generally take turns at supporting our children with me being a full time worker and [Ms B] being a full time mum. I am responsible for getting the children ready for school while I get myself ready for work, I usually make the children dinner in the evenings and this also allows [Ms B] to rest after she has done the school runs. I take the children for tennis practice after work at the tennis club down the road in [a nearby suburb].
We are currently working towards starting up [Ms B]’s business which mainly deals in African clothing and cultural designs.
…
I do love [Ms B] very much and our family is always complete with both input from [Ms B] and myself. We have had a few ups and downs along the way but I think that’s very normal in any marriage these days.
In circumstances where the Applicant had been estranged and living apart from Ms B since December 2016 (see [13] above), the above statements are clearly misleading if not false.
(g)(paragraph 8.1.1(1)(g)) – The Applicant had not received any warning.

The Tribunal is satisfied that the nature and magnitude of the Applicant’s offending was serious. That was made clear by the sentencing judge’s comments and the sentence imposed. In relation to the Applicant’s “other conduct” for the reasons set out in addressing the second primary consideration, there is, in the Tribunal’s view, insufficient evidence to find that the Applicant engaged in family violence. The Tribunal does accept that the Applicant, as the Respondent put it, has been less than frank with the Department.
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[37] (CZCV) summarised the task for the Tribunal as follows (at [56]):
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) 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) 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.
[37] CZCV and Minister for Home Affairs [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection,[38] 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.
[38] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181.
While the Tribunal and the Court respectively 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. The Tribunal follows 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 self-evident. 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.
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.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The Applicant concedes that he has not undertaken any targeted rehabilitation treatment, primarily because the Department of Justice’s evaluation of his treatment needs, conducted within one month of his arrival in prison, identified him as not requiring treatment.[39] The Applicant has, however, completed a certificate IV in Work Health and Safety,[40] a basic workshop in the Peaceful Pathways Project[41] and a program called Standing on Solid Ground. In his evidence at the hearing, the Applicant described the Standing on Solid Ground program as being a program “that mainly tries to enhance people’s emotional wellbeing and how they can be able to apply different principles before they offend, principles such as think first”.[42]
[39] Applicant’s SFIC, para [45]; R1, G26 (Department of Justice Individual Management Plan).
[40] R1, G27/124.
[41] R1, G27/126.
[42] transcript at 43.
The Applicant’s evidence was that, although he did not have any drug or alcohol related issues, he undertook programs such as AA and NA while in prison and that “…during the peak of COVID, there weren’t as many programs available in prison so with whatever was available to me, I made the best use of it”.[43]
[43] transcript at 43.
After he was dismissed from his employment with Hall & Prior in March 2018, the Applicant obtained truck driving qualifications and a truck licence. His evidence was that:
I enrolled myself in a course, in a truck driver’s course with Keen Brothers, which is a truck – truck training institution around Maddington, so that was to increase my prospects of being able to get into a different field of work so I could be able to support my – my family.
The Applicant gained employment as a truck driver and then started a transport business with his brother under the name Reliable Freight Carriers which commenced operation in May 2019. He described it as a business that “mainly delivered whitegoods from JB Hi Fi as well as Good Guys”.[44] The Applicant worked in that business until he was sentenced and taken into custody in March 2020. Prior to his setting up that business, the Applicant was employed by TCP Transport from August 2018 to the time of his starting his own business with his brother in May 2019. In this regard, the Tribunal notes the comments of MacLean DCJ quoted at [35] above, in particular his Honour’s comments that:
… [the Applicant’s] enterprising nature and that enterprising nature manifested itself most impressively by your continued conduct in working, notwithstanding disclosure of these offences.
And that capacity to remain employed is consistent with a person that does have a capacity to rehabilitate themselves and to work, that being a not surprising experience as those people who are at work are generally less likely to offend.
…
… Mr Wightman, I am satisfied that you also have good prospects for rehabilitation. You are a younger man. You do have an enterprising capacity for work and for continuing to work.[45]
[44] transcript at 40.
[45] R1, G8/7, 9
More generally, MacLean DCJ made the following comments about the Applicant’s prospects of rehabilitation (see also [35] above):
In each case, I accept that you have accepted responsibility for your conduct and in each case I am satisfied that you do have very good prospects for rehabilitation…
…
In both cases, I’m satisfied that there does not loom large a risk of reoffending having regard to the qualities that I have referred to.[46]
[46] R1, G8/9.
Looking at the matters to which para 8.1.2(2)(b)(ii) specifically refers, the Tribunal gives weight to the fact that following his dismissal from Hall & Prior in March 2018 up until the time of his imprisonment in March 2020, the Applicant not only spent time in the community without offending, but took significant and effective steps to better himself and equip himself with the necessary qualifications to enable him to move on to a new career of a totally different nature.
The Tribunal agrees with the above-quoted observations of MacLean DCJ. The Applicant’s behaviour in the two years leading up to his sentencing and his conduct while in prison indicate that the Applicant’s prospects of rehabilitation are very good.
Further, an assessment of the likelihood of the Applicant again engaging in the criminal behaviour that resulted in his conviction for stealing as a servant must be made in the light of the circumstances in which the prior offending occurred. Given his conviction, it is highly unlikely that the Applicant will ever be employed in a position of trust similar to that which facilitated his offending. The Tribunal agrees with the description of the Applicant’s offending as, “adventitious”. The evidence does not, in the Tribunal’s view, indicate that the Applicant is an inherently dishonest or untrustworthy person, but rather a weak person who found himself in a position where it was easy for him to abuse a loophole in a financial system. The likelihood of him ever being in that position again is extremely low.
The Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as very low. While the consequences to the community, or a member of the community, if the Applicant were to reoffend could be significant, the likelihood of the Applicant engaging in further criminal conduct is so low as to make the risk not an unacceptable one. This first primary consideration, the protection of the Australian community, weighs moderately in favour of revocation of the cancellation of the Applicant’s visa.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
(a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effect of repeated acts of family violence;
(c) rehabilitation achieved at the time of decision since the person’s last known act of family violence, including;
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
Family violence is defined in para 4(1) of Direction 90 as:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c)   stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f)    intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
(i)    preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)    unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
(Original emphasis.)
Consideration
The Respondent’s counsel submitted that there is information or evidence in the records produced under summons by WA Police and the Armadale Magistrates Court which indicate that the Applicant has engaged in family violence. The Respondent’s counsel argued that WA Police Detected Incident Reports, running sheets[47] and documents relating to restraining orders,[48] should be given evidential weight notwithstanding that the makers of the statements, and the other parties identified in those documents, were not called to give evidence. She pointed to the wording of para 8.2(2)(b) of Direction 90 to argue that those documents were sufficient as they amounted to information or evidence from independent and authoritative sources.[49]
[47] R2, S1–S7.
[48] R2, S8–16.
[49] transcript at 21.
The Tribunal advised Ms Taggart that it was its practice to give only minimal weight to such documents unless the non-citizen is taken to those reports and documents and provided the opportunity to comment on them. Given that these sorts of documents are often provided relatively shortly before the hearing because they are produced under summons (as was the case in the present proceedings), the non-citizen’s opportunity to comment on these sorts of records only arises, in practical terms, at the hearing. The Tribunal also noted that para 8.2(2)(b) requires the non-citizen to be “afforded procedural fairness”.[50]
[50] transcript at 22.
The detected incident reports evidence a strained relationship between the Applicant and his now-estranged wife. There are three detected incident reports. The detected incident report at R2, S1 relates to an incident on 28 September 2015 involving Ms B’s daughter, to whom the Applicant was stepfather. There is no suggestion in that report that the Applicant had assaulted anyone or otherwise engaged in any conduct which would constitute family violence.
The detected incident report appearing at R2, S2 refers to an incident on 23 February 2015 in which the Applicant called the police to attend. Again, that report does not indicate that the Applicant had assaulted anyone. The Applicant’s evidence at the hearing was that it was Ms B who had become physically and verbally aggressive towards him over an affair he thought that she was having.[51] The Tribunal accepts that evidence.
[51] transcript at 48.
A restraining order[52] was issued by the police when they attended on 23 February 2015 which required the Applicant to remove himself from the house, however, as explained in the detected incident report,[53] the reason that the restraining order was issued against the Applicant was that he had a place to which he could remove himself (being his brother’s house) whereas Ms B did not. This was confirmed to be the case by the Applicant at the hearing.[54] The Restraining Order Details document[55] notes the time of issue as being 02:45 on 23 February 2015 with an expiry time of 17:00 on 23 February 2015.
[52] R2, S12.
[53] R2, S2/5.
[54] transcript at 49.
[55] R2, S9.
The third detected incident report[56] related to an incident in 28 April 2013. That report notes that Ms B had become concerned about the Applicant coming home late and behaving suspiciously. This caused her to check the Applicant’s Facebook account and mobile phone which, according the detected incident report, she said disclosed “messages from females indicating that he is having an affair”.[57] The detected incident report advised that when police attended, the Applicant denied pushing Ms B, who was blocking his entrance into the house, and said that he “only moved her slightly so that he could get past her”.[58] His evidence at the hearing was to the same effect.[59] The detected incident report also noted that “[Ms B] made not [sic] comment about the pushing allegation in the CAD text when asked by police”.
[56] R2, S5.
[57] R2, S5/12.
[58] R2, S5/12.
[59] transcript at 72.
A restraining order was issued by police at the time of their attendance on 28 April 2013. The Restraining Order Details[60] show an issue time of 16:30 on 28 April 2013 and an expiry time of 16:30 the following day.
[60] R2, S8.
The documents produced under summons by the WA Police and the Armadale Magistrates Court do not, in the Tribunal’s view, establish that the Applicant has engaged in any family violence, particularly when one reads them in light of the Applicant’s evidence at the hearing. Accordingly, this consideration does not weigh against revocation of the cancellation of the Applicant’s visa.
Third primary consideration: The best interests of minor children in Australia (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)    whether there are other persons who already fulfil a parental role in relation to the child;
(f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way whether physically, sexually or mentally;
(h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The Applicant identified his three children by Ms B, his child by his co-accused and one minor daughter of Ms B as being relevant to this consideration.[61] The Applicant sets out in detail the relationships that he has with four of the five children in the annexures to the representations.[62] As noted above, there was no reference to his child with his co-accused in his submissions to the Department in June 2020 in relation to revoking the cancellation of his visa.
[61] Applicant’s SFIC paras [10]–[12], [52].
[62] A1, A2/9–11.
Parties’ Submissions
The Applicant’s SFIC contends that:
(a)Despite the Applicant’s separation from his wife, and his time in custody, he continues to maintain a close relationship with each of his children via regular visits (mostly Skype), daily telephone calls and some mail.
(b)The Applicant has a bond with and affection for all of his children.
(c)He is closely involved in three of the four children’s primary care; he routinely helps with their schoolwork, their extracurricular activities and health issues.
(d)The school attended by the three youngest children has written a letter which confirms that the Applicant attends parent-teacher meetings and routinely collects the children at the end of the day.
(e)Letters from his children included in the material before the Tribunal evidences the relationship between the Applicant and his children.
(f)The Applicant’s stepdaughter, the 16-year old daughter of Ms B, provided a letter to the Department in support of the Applicant’s request for revocation of the cancellation of his visa. Her “real father” left when she was very young and, after many years of the Applicant fulfilling a parenting role, she sees him as her “real father and not [a] stepfather”.
The Respondent’s SFIC contended that:
(a)If the claims of Ms B being violent to her children (the Respondent points to historical reports to Police and Child Welfare and to the Applicant’s own accounts), then the Applicant “has failed in significant ways to protect the children and has, in that way, not been a positive presence in their lives”.
(b)To the extent that the Applicant contends his absence from the children causes them emotional difficulty, that difficulty arises as a result of the Applicant’s own conduct.
(c)There is no evidence that the children will be unable to maintain contact with their father if he were returned to Zambia, including by Skype and telephone.
(d)As the children become older there is no reason why they could not visit their father (and extended family) in Zambia.
(e)The Applicant’s relationship with the child with his co-accused has included a long period of absence and/or limited contact and there is another person who acts as the child’s father.
(f)There is no evidence that the Applicant has abused or neglected this child.
The Applicant’s submissions in reply contended that:
(a)The Applicant and Ms B remain in contact, and are co-parents, in relation to their step and biological children despite their separation and the Applicant’s imprisonment. In support of this, the Applicant identifies:
(i)a total of 11 letters written at the time of the Applicant’s revocation request (May 2020) variously provided by the Ms B, the Applicant’s stepdaughters, brother, and long-term friends. The contents of these letters are consistent with the Applicant being an individual who is committed to his family unit;
(ii)a letter from [omitted] Primary School dated 19 May 2020[63] which records the Applicant’s attendance at parent-teacher meetings and school pick-ups (prior to his imprisonment);
(iii)records of prisoner calls in April and May 2020 showing almost daily calls from Ms B;[64]
(iv)prison records for the period 16 April 2020 to 5 March 2021 which record that the Applicant has regular visits from friends and family; and
(v)an Individual Management Plan dated 31 March 2021 which states that the Applicant receives regular Skype visits from Ms B and four children, and that he speaks to his family and friends by telephone on a daily basis. He occasionally sends/receives mail.
(b)The Applicant now concedes that he and his wife may not reconcile.
(c)With regards to the Applicant’s failure to provide information about the child with his co-accused in the Personal Circumstances Form, it must be noted that the Department requested that the Applicant and the child undergo DNA testing in 2017 as part of the child’s Australian citizenship application. The child was subsequently granted Australian citizenship. Accordingly, the Applicant was entitled to assume that the Department was, or is, aware of the child’s existence.
(d)The omission of reference to that child in the Personal Circumstances Form is consistent with the Applicant not wishing to elevate the status of his relationship with the child to the equivalent status of his other minor biological children and his stepdaughters – which is an accurate reflection of the family situation.
(e)It is important to keep in mind how young the Applicant and Ms B’s biological children are: they are aged 8, 7 and 5 years old. Whatever the past nature of family situation might have been, those children’s present and future best interests must be served by allowing their father to remain in Australia and continue to play a supportive role in their lives.
[63] R1, G15.
[64] R1, G20.
Consideration
As the Applicant contended in his SFIC and in his reply, there were, in the documents before the Tribunal,[65] letters from the Applicant’s older son with Ms B, the Applicant’s stepdaughters, Ms B and the Applicant’s brother attesting to the Applicant being close to his children. The Tribunal accepts that up to the point of his incarceration in March 2020, the Applicant did play a significant parenting role in respect of his children with Ms B, both financially and in day-to-day general support. The evidence shows that the Applicant was actively engaged in these children’s education and extra-curricular activities notwithstanding that he was not living with their mother. It also shows that since his incarceration there has been regular and frequent contact between the Applicant and these children.
[65] R1; A1.
In her letter dated 25 May 2020,[66] Ms B says that she fears that the deportation of the Applicant would have a “negative [e]ffect” on her children and that the children had suffered anxiety as a result of them not being able to see their father in person due to COVID-19 restrictions. She also stated that the Applicant is a caring father and that he would often take the primary caring role when her disability (type 1 insulin dependent diabetes) prevented her from looking after the children.
[66] R1, G23.
It is, in the Tribunal’s view, clear that, taking into account the considerations identified in para 8.3(4) of Direction 90, the best interests of the Applicant’s children with Ms B would be served by the Applicant remaining in Australia, in other words, by revocation of the cancellation of the Applicant’s visa.
The Tribunal is also mindful of Article 3 of the United Nations Convention on the Rights of the Child (CROC) which provides:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
and the preamble to the CROC which provides:
...the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community,
Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding...
The evidence in relation to the Applicant’s minor stepdaughter does indicate a closeness between her and the Applicant[67] as well as there being some financial support provided by the Applicant through his support of Ms B. Her best interests would, in the Tribunal’s view, be served by the Applicant being allowed to stay in Australia.
[67] R1, G13 (letter from the child).
The evidence in relation to the Applicant’s child by his co-accused does show that the Applicant has, as far as possible in the circumstances, tried to support him both financially through payment of the day care costs and by applying for the child’s Australian citizenship.[68] There is no reason to believe that that support would not continue if the Applicant were allowed to stay in Australia.
[68] transcript at 65–6.
The Applicant’s contact with the child by his co-accused has been limited. He last saw the child on 27 March 2020 when he and his co-accused were sentenced. Prior to then, he had had no contact with that child since December 2018. The Applicant explained at the hearing that this was because a condition of his bail was that he have no contact with his co-accused which, in turn, effectively prevented any contact with the child.[69]
[69] transcript at 66.
The Tribunal finds that, albeit to a lesser degree than the best interests of the Applicant’s children with Ms B, the best interests of the Applicant’s child with his co-accused would be served by the Applicant being able to stay in Australia.
The Tribunal acknowledges that during the Applicant’s incarceration, particularly since the introduction of in-person visitor restrictions because of COVID-19, he has maintained contact with all his children through electronic means, in particular Skype, and that there is no reason why that could not continue if he were to be removed to Zambia. Such means of contact are, however, sub-optimal and less likely to build or maintain parent/child relationships than personal contact.
As noted above at [66], the Tribunal has not found that the Applicant engaged in any family violence. While there is material before the Tribunal concerning alleged family violence to which the Applicant’s children and stepdaughter were supposedly exposed,[70] the Tribunal does not find that any such family violence was committed by the Applicant.
[70] R2, S1; transcript at 66.
Taking all of the above considerations into account, it is the Tribunal’s finding that the best interests of the five identified children, in particular the Applicant’s three children with Ms B would be served by the Applicant being allowed to stay in Australia. This third primary consideration weighs in favour of revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this consideration.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition … non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
The Tribunal also refers to the principles set out in para 5.2 of Direction 90 as set out in [27] above.
As noted at [25] above, Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[71] (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs[72] (FYBR).
[71] NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143.
[72] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. …
This Tribunal respectfully agrees with Senior Member Morris. In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[73] this Tribunal summarised the effect of the Full Court’s judgment in FYBR and the current state of the law as follows:
[73] Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953.
156.… The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
157.Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the High Court (Kiefel CJ and Keane J) refused special leave.
158.Justice Stewart in FYBR (FC) found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
159.Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79.... The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
160. Member Burford put it in Rehman as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
(Footnotes omitted.)

Due to the application of the “norm”, as it is now referred to, in para 8.4(1) of Direction 90, and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the Applicant’s visa. In this case, however, given the nature of the offence, in particular the fact that it did not involve violence or offending against women or vulnerable members of the community, nor did it involve any of the other attributes identified in sub-paras 8.4(2)(a) to (f) of Direction 90 and the very low risk of the Applicant re-offending, only minor weight should be given to this primary consideration.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section ... 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
International non-refoulement obligations (para 9.1)
Neither party made any submission on this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2)
Para 9.2 of Direction 90 provides:
Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant’s SFIC did not identify this as an applicable consideration nor did the Applicant identify any impediments to his returning to Zambia in his representations to the Department.[74] Under the heading “Impediments to Return” in the Personal Circumstances Form,[75] the Applicant advised that he did not have any diagnosed medical or psychological condition and that he was not taking any medication. In the Personal Circumstances Form the Applicant also identified numerous members of his family, including his parents, sisters and brothers as living in Zambia. The Tribunal also notes that the Applicant has relatively recently (2012) returned to Zambia for an extended period.[76]
[74] R1, G11–G12.
[75] R1, G12/74.
[76] transcript at 73.
The Tribunal is satisfied that there would be no impediment 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 Zambia. This consideration does not weigh in favour of revocation of cancellation of the Applicant’s visa. At worst for the Applicant, it weighs against revocation of the cancellation of the visa, however, only minor weight should be given to it.
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 this Tribunal noted in respect of the same provision in Direction 79 in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[77] at [109]–[111] and in Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[78] 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 community including victims (emphasis added).
[77] Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171.
[78] Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [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) 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 the Tribunal does so in those considerations.
Neither party identified this as a relevant consideration. Insofar as the para 9.3 requires consideration of the impact on victims of the Applicant’s crime, there was no evidence or information before the Tribunal 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:
9.4.1. The strength, nature and duration of ties to Australia
(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.
Parties’ Submissions
The Applicant’s SFIC contended that:
(a)The Applicant has continuously lived in Australia for over 11 years. In addition to his Australian wife and children, he has immediate family here with whom he is close being his brother and his sister. He has extended family of five cousins all of whom live in Perth.
(b)The Applicant completed an Advanced Diploma in Accounting at Edith Cowan University in Western Australia while holding his student visa. He has otherwise maintained consistent employment, including as a small business owner, throughout his time in Australia.
(c)The Applicant has provided a number of letters and statements in support of his case from Australian-based friends and family. The overwhelming theme of those letters is that the Applicant is a friendly, hard-working man who is devoted to his children.
The Respondent’s SFIC submitted that:
(a)Although the Applicant has created a life for himself here over the last 11 years, he arrived in Australia when he was 19 years old. His offending extended for three of the 11 years he has been here. He has otherwise been incarcerated for a year of those 11 years. Those are matters which support less weight being given to this consideration.
(b)The Respondent accepts that the Applicant plainly intended to make, and largely has made, a life in Australia. He has family here who are Australian citizens who will miss him if he returns to Zambia. Those are matters which weigh in favour of revocation.
Consideration
It is the case, as asserted by the Applicant, that members of the community, family and friends have provided letters of support. One of those letters was from Ms B (see [73] above). While Ms Taggart asked the Tribunal to draw an adverse inference, or at least to treat Ms B’s statement with caution because she was not called to give evidence, the Tribunal accepts the claims made by Ms B in that letter and the impact that the Applicant’s deportation would have on her and her children. She advised that the Applicant still played a significant role in caring for the children even though they have been separated since 2016. This was consistent with the Applicant’s evidence at the hearing.
It is the case that the Applicant has not lived in Australia for very long, having arrived as an adult, and that he started offending relatively shortly after his arrival. Less weight must therefore be given to this consideration. However, weight is to be given to the fact that, apart from his offending, the Applicant has positively contributed to the community. Firstly, through his studies as an overseas student, then through his employment, and most recently through the establishment of a business with his brother.
Impact on Australian business interests (para 9.4.1)
In assessing the Applicant’s links to the Australian community, the decision-maker is also required to have regard to the impact on Australian business interests. Paragraph 9.4.2 of Direction 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.
Neither party made a submission on this consideration. The Tribunal is satisfied that it is not relevant in the present case.
The Tribunal is satisfied that, taking into account the matters identified in para 9.4.1 and 9.4.2 of Direction 90, this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa and that moderate weight should be given to it.
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 [31] above). It 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 other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
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. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[79] and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.[80]
[79] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545.
[80] Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above 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. ...
The Tribunal follows 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, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as very low. Taking into account the harm that would be caused to the community if the Applicant were to reoffend and the likelihood of him reoffending, this consideration weighs in favour of the revocation of the cancellation of the visa. Moderate weight should be given to this consideration.
Because of the Tribunal’s finding that there was insufficient evidence to be satisfied that the Applicant had engaged in family violence, the second primary consideration, family violence, does not weigh against revocation of the cancellation of the Applicant’s visa. It is, at worst for the Applicant, neutral in the weighing exercise.
The third primary consideration, the best interests of minor children, for the reasons set out in [72]–[82] above, weighs in favour of the revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this consideration.
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 [88] 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 and, at worst for the Applicant, weighs against revocation of the cancellation of the visa. However, only minor weight should be given to it.
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 the Tribunal’s consideration of other paragraphs of Direction 90 (see [96] above) and insofar as para 9.3 calls upon the Tribunal to consider the impact of the decision on victims, there is no evidence before the Tribunal to make any assessment.
The consideration of the nature and duration of the ties that the Applicant’s links to the Australian community weighs in favour of the revocation of the cancellation of the visa. For the reasons set out above at [102]–[106] moderate weight should be given to this consideration.
Having weighed the considerations in favour of the revocation of the cancelation of the Applicant’s visa and the considerations against the revocation of the cancelation of the Applicant’s visa, the Tribunal finds that the considerations in favour of revocation outweigh those against revocation. Accordingly, the Tribunal finds that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of Respondent dated 15 February 2021 under s 501CA(4) of the Act not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class BS Subclass 801 Partner 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 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 11 May 2021

Date of hearing: 29 April 2021

Counsel for the Applicant: Ms J Edis

Solicitors for the Applicant: Putt Legal

Counsel for the Respondent: Ms C I Taggart

Solicitors for the Respondent: MinterEllison

Date of hearing:	29 April 2021
Counsel for the Applicant:	Ms J Edis
Solicitors for the Applicant:	Putt Legal
Counsel for the Respondent:	Ms C I Taggart
Solicitors for the Respondent:	MinterEllison