WQKK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 4773
•21 November 2022
WQKK and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4773 (21 November 2022)
Division:GENERAL DIVISION
File Number:2022/6994
Re:WQKK
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Member A Julian-Armitage
Date: 21 November 2022
Date of written reasons: 31 January 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate for the Minister for Home Affairs on 29 August 2022 to cancel the Class XA Subclass 866 Protection visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth).
...................[SGD].................
Member A Julian-ArmitageCatchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class XA Subclass 866 Protection visa – whether the Applicant passes the character test – whether there is another reason why the decision to cancel the Applicant’s visa should be revoked – consideration of Ministerial Direction No. 90 – substantial criminal record – decision under review is affirmed.
Legislation
Administration Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Minister for Home Affairs v Buadromo [2018] FCAFC 151
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
FRLH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 58
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member A Julian-Armitage
31 January 2023
INTRODUCTION AND BACKGROUND
WQKK (“the Applicant”) is a 55 year-old (born in 1967), a Kurd who was formally a resident of Iran. He first arrival in Australia on 3July 2010, at approximately 43 years of age via boat as an unlawful non-citizen and was detained at Christmas Island, Western Australia.[1] A Refugee Status Assessment (“RSA”) was commenced with respect to the Applicant[2] on 19 September 2010. The Applicant was granted On 25 January 2012, the Applicant was granted a Class XA Subclass 866 Protection visa (“Visa”) and released into the Australian community.[3]
[1] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions (‘SFIC’) dated 30 September 2022, page 2, [7].
[2] Ibid, page 3, [8].
[3] Ibid, page 3, [12].
Offending
The Applicant has a significant history of offending throughout his time in Australia. The National Criminal History report (“National Criminal History Report”) is contained in the material furnished to the Tribunal.[4] The Applicant’s range of offending has been summarised as follows:
[4] Exhibit 1, G4, Attachment A: National criminal history report (dated 26.03.21), pages 36 – 39.
Court
Date
Offence
Sentence
Magistrate Court, Qld
February 2021
Unlawful possession of controlled drug
Conviction recorded – not further punished
Forgery (x 23)
Uttering (x 23)
Fraud – dishonestly gain benefit/advantage (x 19)
Attempted fraud – dishonestly gain benefit/advantage (x 4)On all charges: Conviction recorded
Imprisonment: 18 Months concurrentLocal Court, NSW
August 2020
Possess forged prescription
Forge or alter prescription which includes prohibited drugConvicted
Local Court, NSW
January 2019
Drive motor vehicle during disqualification period – 2nd+ offence
Imprisonment: 5 months
Disqualification – driver: 12 monthsPossess forged prescription
Imprisonment: 1 month
Local Court, NSW
December 2018
Possess false document to obtain property – T1
Deal with identity info to commit etc indicatable offence – T1
Obtain or attempt – prohibited drug by false representation (x 2)
Obtain prescription by false representation
Use false document to obtain property(Call up) Imprisonment: 8 months
Obtain or attempt – prohibited drug by false representation
Possess prohibited drug(Call up) Imprisonment: 12 months
Drive motor vehicle during disqualification period – 2nd+ offence
(Call up) Imprisonment: 12 months
Drive motor vehicle during disqualification period – 2nd+ offence
(Call up) Imprisonment: 12 months
Drive motor vehicle during disqualification period – 2nd+ offence
Imprisonment: 6 months
Disqualification: 12 monthsLocal Court, NSW
October 2018
Class A m/v exceed speed >10km/h
Fine: $400
Local Court, NSW
August 2018
Possess false document to obtain property – T1
Deal with identity info to commit etc indicatable offence – T1
Obtain or attempt – prohibited drug by false representation (x 2)
Obtain prescription by false representation
Use false document to obtain property(Call up) Imprisonment: 8 months
To attend for counselling, educational development, drug or alcohol rehab (supv NSW prob service)
Obtain or attempt – prohibited drug by false representation
Possess prohibited drug
Imprisonment: 12 months
Suspended on entering bond
To attend for counselling, educational development, drug or alcohol rehab (supv NSW prob service)
Obtain prescription by false representation
Possess false document to obtain property – T1
Obtain or attempt – prohibited drug by false representation(Call up) Imprisonment: 8 months
To attend for counselling, educational development, drug or alcohol rehab (supv NSW prob service)
Drive motor vehicle during disqualification period – 2nd+ offence
Imprisonment: 12 months
Suspended on entering bond
Disqualification – Driving: 12 months
To attend for counselling, educational development, drug or alcohol rehab (supv NSW prob service)Drive motor vehicle during disqualification period – 2nd+ offence
Imprisonment: 12 months
Suspended on entering bond
Disqualification – Driving: 12 months
To attend for counselling, educational development, drug or alcohol rehab (supv NSW prob service)Local Court, NSW
July 2018
Possess prohibited drug
Fine: $300
Local Court, NSW
May 2018
Drive motor vehicle during disqualification period – 2nd offence
Fine: $1,000
Disqualification: 12 monthsLocal Court, NSW
March 2018
Drive motor vehicle while licence suspended – 1st offence
Fine: $500
Disqualification: 3 monthsLocal Court, NSW
February 2018
Drive motor vehicle while licence suspended – 1st offence
Fine: $600
Disqualification: 3 monthsLocal Court, NSW
November 2017
Possess false document to obtain property – T1
Deal with identity info to commit etc indicatable offence – T1
Obtain or attempt – prohibited drug by false representation (x 2)
Obtain prescription by false representation
Use false document to obtain propertyBond 12 to 24 months
To attend for counselling, educational development, drug or alcohol rehab (supv NSW prob service)Custody of knife in public place – first offence
Conviction with no other penalty
Weapon/implement forfeited to the crownPossess false document to obtain property – T1
Obtain or attempt – prohibited drug by false representation
Obtain prescription by false representationBond: 12 months
To attend for counselling, educational development, drug or alcohol rehab (supv NSW prob service)Local Court, NSW
May 2017
Possess prohibited drug
Fine: $500
On 16 April 2021, the Applicant was given notice that his visa had been mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis he did not pass the character test as he had a substantial criminal record and had been sentenced to a term of imprisonment of more than twelve (12) months which he served on a full-time basis in a custodial institution.[5] On 4 May 2021, the Applicant made written representations to the Respondent seeking a revocation of the mandatory cancellation decision.[6] That decision was considered by a delegate of the Respondent who, on 29 August 2022, published the decision to deny the revocation sought.
[5] Exhibit 1, page 86.
[6] Ibid.
On 29 August 2022, the Applicant made an application to this Tribunal for review of the delegate’s decision to refuse to exercise the discretion to enliven the powers in s 501CA(4) of the Act in order to revoke the mandatory cancellation of the his visa.
The hearing of this application proceeded before me on 8 and 9 November 2022. The following persons gave oral evidence:
·The Applicant;
·Mr SZ;
·Ms L WQKK (the Applicant’s wife);
·Ms AP; and
·Dr MS.
The hearing also received written evidence which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The 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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, at [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, at [31] (Collier J, with whom Logan and Murphy JJ agreed).
Issues
There are therefore two issues presently before this Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…”
On 1February 2021, the Applicant was sentenced to a term of imprisonment of for a period of 18 months.[9]
[9] See Exhibit 1, G4, Check Results Report, page 32.
Therefore, I am satisfied, and find, that the Applicant does not pass the character test as he was sentenced to imprisonment for a period of 12 months or more (s 501(6)(a) and
s 501(7)(c) of the Act).
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[11]
[10] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
[11] Direction No 90, at para [6]. See also para [4(1)] which provides that a “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” pursuant to ss 501 or 501CA of the Act (as the case may be). Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(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 measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction, respectively, stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[12]
[12] Direction 90, para [8].
The Other Considerations which, where relevant, I must take into account, 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.”[13]
[13] Direction 90, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As referred to above, the Applicant’s criminal history is lengthy, bringing him before the Courts on a regular basis for numerous charges.
I will now apply the relevant sub-paragraphs of Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This sub-paragraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed “very seriously” by the Australian Government and the Australian community.
There is nothing before this Tribunal to indicate that the Applicant has been involved in the commission of violent and/or sexual crimes.
Consequently, this sub-paragraph has no relevance in the present case.
Paragraph 8.1.1(1)(a)(ii)
This subparagraph looks for the commission of crimes of a violent nature against women or children, regardless of the sentence imposed.
No evidence has been adduced to indicate that the Applicant has committed any crimes of a violent nature against women or children rendering this sub-paragraph as irrelevant for present purposes.
Paragraph 8.1.1(1)(a)(iii)
This sub-paragraph refers to acts of family violence contained in an Applicant’s criminal history. If such offending is contained in the Applicant’s history, it is viewed “very seriously” by the Australian Government and the Australian Community.
The Applicant’s criminal history does not include any such acts of family violence.
Paragraph 8.1.1(1)(b)
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
The Applicant’s criminal history does not contain any offending contemplated by this paragraph.
Paragraph 8.1.1(1)(c)
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider the Applicant’s (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) sentencing history imposed by the Courts for a crime or crimes of a non-citizen/applicant. This is to be underpinned by the fact that the imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
It is evident from the Applicant’s criminal record that he has received a multiplicity of sentences dating back to mid-2017 for offences which, as the Respondent put it, disclose a theme involving possession of drugs and dishonesty. These offences have been peppered with regular and consistent convictions for driving offences which, in the main, are for driving whilst disqualified. These repeated driving offences commence in early 2018 and have continued with regularity despite the sentences imposed on each occasion.
The sentences received by the Applicant range from (1) fines, (2) bonds, (3) orders to attend counselling, educational development, drug and alcohol rehabilitation (4) driver disqualifications, and (5)sentences of imprisonment, either suspended or where he spent actual time in custody. Some notable examples of these as evidenced in the Applicant’s criminal history[14]:
·On 20 November 2017 convicted of 2 charges of obtain prescription by false representation obtain or attempt prohibited drug by false representation, 3 charges of obtain or attempt to obtain prohibited drug by false representation, 3 charges obtain false document to obtain property and custody of a knife in a public place. The sentence for this offending was a 12 month bond and involved presenting a prescription in the name of another for 20 patches of the opioid Fentanyl. These offences were called up on 15 August and 14 December 2018 as a result of further offending.
·On 23 January 2019 convicted and sentenced to 5 months imprisonment for forge or alter prescription which includes prohibited drug and drive a motor vehicle during disqualification period for 2nd time. The term of imprisonment was on account of the driving offence as the Applicant had previously received a suspended sentence for the same type of offences.[15]
·On 31 August 2020 convicted of possess forged prescription and forge or alter prescription which includes a prohibited drug. Despite a non-appearance by the Applicant, he was nevertheless convicted with a warrant issuing.
·On 1 February 2021 convicted and sentenced on 19 counts of fraud-dishonestly gain benefit/advantage, 23 counts of forgery and 23 counts of utter forged document.[16] The sentencing magistrate commented in relation to the serious nature of unlawfully obtaining fentanyl due to the strong nature of this opioid and identified 32 occasions from May to August 2020 that the Applicant had forged a prescription and committed fraud by obtaining fentanyl from a pharmacy. On this occasion the Applicant was sentenced to 18 months imprisonment.
·In addition to the above numerous and frequent drug related offences, the Applicant has a long traffic history dating back to 20 February 2018 and again on 26 March 2018 for unlicenced driving. He was disqualified from driving and fined. He was again before the Court on 15 August for driving whilst disqualified on 2 occasions for which he received a 12 month custodial sentence wholly suspended.
·The Applicant was again before the Court on 14 December 2018 with the sentencing Judge noting that he had been caught driving whilst disqualified only 3 weeks after receiving a suspended sentence. He was sentenced to 6 months imprisonment with the Court making note that he was a regular disqualified driver.
[14] Exhibit 1, G4 page 31-39.
[15] Exhibit 1, G6, page 47.
[16] Ibid, G5, page 41.
Given the seriousness of the Applicant’s offending as mentioned above, I find that the sentences imposed by the Courts for the crimes committed by the Applicant supports a finding that his unlawful conduct in Australia has been of a very serious nature.
Paragraph 8.1.1(1)(d)
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
In relation to this sub-paragraph, it is necessary to address 2 specific aspects of a person’s offending, namely the frequency of the offending and/or whether there is a trend of increasing seriousness. In respect to the first aspect, it is clear from the Applicant’s criminal history that there has been unquestionable frequency of offending since 2017 to date as is evident in the Applicant’s Check Results Report spanning some 8 pages of offending. Furthermore, the Applicant also has notably long Traffic history throughout the same period of time.
What is also clear is that there has been little, if any, deterrence in relation to the frequency of the Applicant’s offending both with respect to the uttering, forgery and drug offences and those with respect to his traffic offending.
Accordingly, I find that there has been an obvious and undeniable frequency of the Applicant’s offending. Furthermore, and with respect to the second limb of this sub-paragraph, I find that the trend of the sentences imposed in relation to the Applicant’s offending have been demonstrative of an increase in seriousness of offending. This may well have been a reflection of the Courts’ realisation that earlier forms of sentences for the genre of the Applicant’s offending had not served as a deterrent to his appetite for offending.
I therefore conclude that both elements of this particular sub-paragraph are, on a totality view, indicative of the Applicant’s offending in Australia has been very serious.
Paragraph 8.1.1(1)(e)
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. I am of the firm view that the Applicant’s long sequence of offending is demonstrative of a number of cumulative effects. It is obvious that his offending is demonstrative of a blatant failure to comply with the requirements of lawful authority in Australia. This is evidenced by his numerous re-offending which has enlivened suspended sentences such as has occurred with driving whilst disqualified.
The progressive evolution of the Applicant’s sentencing impositions during his period of offending is also demonstrative his failure to experience any deterrence as a result of the progressively more severe sentence imposed. It is obvious that the more lenient non-custodial sentences, bonds and fines did not serve, in any way, to prevent him from re-offending such that he progressed to having to serve actual custodial sentence for significant time periods. The Applicant’s need to acquire fentanyl by illicit means has overtaken any respect for the laws of Australia including traffic laws.
In addition, the Applicant’s offending has consumed a significant amount of law enforcement and the Court’s sentencing regime. Whilst was no evidence of the Applicant selling the drug he unlawfully acquired, given the sheer quantities subject of the offending, it is not beyond comprehension that others would come into contact with the drug in turn, could have resulted in catastrophic damage to the end user and their families and the community at large. It is not far fetch to suggest that the Applicant’s blatant disregard of Australia’s traffic law, at times, could likewise have negative effect on the community’s resources.
Given the above cumulative effects detailed above, I find the Applicant’s repeated offending in Australia has been very serious in nature.
Paragraph 8.1.1(1)(f)
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There does not appear to be any evidence indicating that there is any relevance to the Applicant position that relates to this sub-paragraph.
Paragraph 8.1.1(1)(g)
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to 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).
In respect to this sub-paragraph, it is alarming that, despite the Applicant’s visa being mandatorily cancelled previously (December 2019) pursuant to s501(3A) of the Act, he has not seen that previous cancellation, and subsequent revocation, as a wake-up call. The first cancellation of his visa and revocation proceeding in this Tribunal would, in my mind, have made it very clear to the Applicant what the likely consequences of any further offending would have on his visa for the purposes of this sub-paragraph. Yet his offending continued with similar frequency in relation to both themes of his offending as before that first cancellation. Hence, I find that notice of the previous cancellation of the Applicant’s visa was given to him in writing. In addition, he must have been aware of the consequences as he sought review of the decision by the delegate then to not revoke the cancellation in this jurisdiction. I also find that the ultimate revocation of that previous cancellation would have served as a warning to him with the strong implication that should he re-offend he could again risk a mandatory cancellation of his reinstated visa.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction. Taking into account the particular applicability of the relevant sub-paragraphs that I have referred to, I am of the view that the totality of the Applicant’s unlawful conduct in Australia can be accurately characterised and “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, we 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 of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, we must have regard to the three following factors on a cumulative basis:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I am satisfied that if the Applicant were to re-offend in the categories for which he has been convicted and sentenced, individual victims and/or the Australian community could suffer physical, or other forms of damage.
The Applicant claims to have unlawfully obtained the opiate fentanyl in order to send to his terminally ill daughter in Iran and for his own personal use. The fact that he sent this drug to his daughter was corroborated by his wife’s testimony. Furthermore, it was his evidence that he has ceased the use of this drug. However, given the highly addictive nature of the drug he was consuming, there is a risk he could begin to reuse. It is difficult to assess the veracity of the Applicant’s claims given his long history of this type of offending both prior to the previous mandatory cancellation in 2019 and the one the subject of these proceedings. In my view, the cessation of offending is more likely due to the fact that the Applicant has not been in the community.
I am satisfied that if the Applicant were to engage in any further criminal or serious conduct, of the types contained in his criminal history, individuals and the Australian community at large could suffer.
If the Applicant were to resume obtaining fentanyl by unlawful means, users of this very strong opiate, including he himself should he reuse, could suffer serious health consequences affecting, not only individual but also their families and the Australian community’s resources in dealing with likely addiction issues. I mention this as the evidence proffered with respect to the Applicant’s offending, and the sheer number of charges and quantities of the drug obtained in relation to this category did not persuade me that it was only for his and his daughter’s personal use.
If he was to again assume control of motor vehicle and drive on Australian public roads whilst not licenced to do so, it is not farfetched to surmise that other users of those roads would be exposed to identifiable risk. Equally, if he were to again be the unlawful possession of a prohibited weapon or what appears to be a prohibited weapon, there is a scope for harm to befall upon members of the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Sub-paragraph 8.1.2(2)(b) of the Direction)
(i) Information and evidence on the risk of the Applicant reoffending
I accept that the Applicant has expressed his remorse for his offending, however, I place little weight on his credibility. No independent evidence was adduced provided any cogency such to persuade me that his engagement in offending was merely to provide Fentanyl for pain relief for his daughter and father in Iran. Furthermore, the frequency of his offending with respect to obtaining Fentanyl and the quantities he has been sentenced for are far greater than the amounts he sent to Iran. His wife’s oral evidence, when questioned in relation to the quantities of Fentanyl she had received from the Applicant was that she had received 1-2 boxes (each box containing 5 patches) monthly over a 5-year period. This would equate to between 100-500 patches that period. In contrast, the Applicant’s evidence was that he sent patches to his wife around 50 times in that same period which would equate to between 750-1000 patches. This inconsistency in the evidence fuels the view, as expressed above, that the unlawfully obtained Fentanyl was, at least in part, for other purposes.
In addition to the above, the Applicant has on many occasions, including throughout the previous time he was before this Tribunal contesting an earlier mandatory cancellation, professing his remorse and stating that he had “no reason for me to do criminal activities, so the risk of re-offending is minimal”. This statement was underpinned then by the Applicant stating his cancer had been eliminated and his father’s and daughter’s conditions had stabilised and still he re-offended and finds himself in an almost identical situation making claims before this Tribunal that he will not re-offend. I find it difficult to not reject the Applicant’s claims of remorse and that he will not re-offend. Particularly so as he has not been in the community since 1 March 2021.
Dr MS provided a psychological report and gave evidence at the hearing of this matter. Dr MS stated that her report and ultimate findings were based on what the Applicant told her. When cross-examined by the Respondent’s representative, Dr MS said that she knew the Applicant had his visa cancelled previously and that the cancellation had been revoked but did not know of the claims previously made to the Tribunal identifying his own mistakes and promises he would not repeat that behaviour. Dr MS agreed that had she known of this, it would have triggered more questioning of the Applicant.
It is noteworthy that the sentencing Judge on 14 December 2018 remarked that the Applicant is a liar and a cheat.[17] Further, the last sentence given on 1 February 2021, there are sentencing remarks that raise grave concerns that the Applicant had such a criminal history with similar genres of offending.[18]
[17] Exhibit 1, G7, page 49.
[18] Ibid, G5, page 41.
Given the above, I give little weight to the Applicant’s claims of remorse and that he is a low risk of re-offending.
(ii)Evidence of rehabilitation achieved by the Applicant by the time of this decision
The Applicant has provided limited evidence in relation to his attempts at rehabilitation.[19] He has also referred to counselling undertaken in the last quarter of 2018 in his Statutory Declaration dated 10 June 2022. He has, however, used the excuse of not engaging in further rehabilitation course due to his incarceration and detention. I am not persuaded by these excuses and am of the opinion that if he was serious about seeking help in relation to his fraud and drug relationship, as well as his traffic offending tendency he would have been more proactive about seeking help.
[19] Exhibit 7, pages 14, 49 & 63.
(iii) Conclusions about risk
It would have been helpful to have a more reliable clinical report in relation to the risk of recidivism which was based on clinical evidence rather than, as Dr MS stated, was based on what the Applicant related to her. This is particularly concerning given the Applicant’s proven history of being somewhat flexible with the truth in respect of remorse and re-offending. Given the circumstances and the evidence before me, I find the risk of re-offending unacceptable and the Applicant poses a potentially significant risk of harm to members of the Australian community which weighs heavily against revocation of his mandatory visa cancellation.
Is the risk of harm affected by any of the factors referred to in sub-paragraph 8.1.2(2)(c) of the Direction?
Paragraph 8.1.2(2)(c) provides:
“where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.”
I address this sub-paragraph of the Direction for the sake of completion. However, the present case does not involve a refusal of the grant of a visa but an application for the revocation of the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
With respect to the weight attributable to Primary Consideration 1, I found that the nature and seriousness of the Applicant offending and conduct in Australia to date as “very serious”. I am also of the view, and thus found, that were the Applicant to re-offend, it would potentially cause serious harm to individuals and/or the Australian community physically, psychologically and financially at unacceptable levels.
Furthermore, I have assessed the Applicant’s risk of offending or other serious conduct as high for the reasons I have given in respect to the clinical evidence and my finding that the Applicant lacks the level of veracity such as to provide confidence that his recidivist risk is lower than what I have found.
The evidence before me, both oral and in written form, has led me to find that this Primary Consideration 1 carries a heavy, but not in isolation, determinative level of weight against the revocation of the Applicant’s mandatory visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
There is nothing before this Tribunal to indicate that the Applicant has engaged in this form of conduct. Hence no weight is allocated to this consideration.
Primary Consideration 3: The best interests of minor children in Australia
There is no claim made by the Applicant with respect to there being any minor children in Australia whose interest would be affected in this case. Hence, no weight is given to the consideration.
Primary Consideration 4 – The Expectations Of The Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia, I am required to consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are 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 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.
Paragraph 8.4(3) of the Direction provides that 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.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Allocation of Weight to this Primary Consideration 4
It is evident that the Applicant has repeatedly breached the Australian community’s expectations evidenced by his very lengthy criminal record of offending in this country. It, therefore, follows that the Australian community expects the Australian government to no permit his continued stay in Australia.
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a great deal of weight against the revocation of the mandatory cancellation of the Applicant’s visa.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
Other Consideration (a): International non-refoulement obligations
Paragraph 9.1 of Direction 90 relevantly provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing. Accordingly, in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.
(2) In making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen's criminal offending or other serious conduct. In doing so, decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, and in the meantime, detention under section 189, noting also that section 197C of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(3) However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa. This is because such a decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the non-citizen applies for a protection visa, the non-citizen would not be liable to be removed while their valid visa application is being determined.
...
(8) If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international nonrefoulement obligations.
Section 36A of the Migration Act relevantly provides:
(1) In considering a valid application for a protection visa made by a non-citizen, the Minister must consider and make a record of whether the Minister is satisfied of any of the following:
(a) the non-citizen satisfies the criterion in paragraph 36(2)(a) with respect to a country and also satisfies the criterion in subsection 36(1C);
(b) the non-citizen satisfies the criterion in paragraph 36(2)(aa) with respect to a country;
(c) the non-citizen:
(i) satisfies the criterion in paragraph 36(2)(a) with respect to a country but does not satisfy the criterion in subsection 36(1C); and
(ii) would satisfy the criterion in paragraph 36(2)(aa) with respect to a country except that the non-citizen is a non-citizen mentioned in paragraph 36(2)(a).
(2) The Minister must do so:
(a) before deciding whether to grant or refuse to grant the visa; and
(b) before considering whether the non-citizen satisfies any other criteria for the grant of the visa; and
(c) before considering whether the grant of the visa is prevented by any provision of the Act or regulations;
...
Section 189(1) of the Migration Act provides:
If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non-citizen, the officer must detain the person.
Section 198(1) of the Migration Act provides:
An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.
Section 197C of the Migration Act relevantly provides:
(1) For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) An officer's duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.
(3) Despite subsections (1) and (2), section 198 does not require or authorise an officer to remove an unlawful non-citizen to a country if:
(a) the non-citizen has made a valid application for a protection visa that has been finally determined; and
(b) in the course of considering the application, a protection finding within the meaning of subsection (4), (5), (6) or (7) was made for the non-citizen with respect to the country (whether or not the visa was refused or was granted and has since been cancelled); and
(c) none of the following apply:
(i) the decision in which the protection finding was made has been quashed or set aside;
(ii) a decision made under subsection 197D(2) in relation to the non-citizen is complete within the meaning of subsection 197D(6);
(iii) the non-citizen has asked the Minister, in writing, to be removed to the country.
...
In the present case, the parties are in agreement that a protection finding has been made in relation to the Applicant on the basis that he is a Faili Kurd who is stateless who fears harm if returned to Iran.
I note that the legal consequence of a protection finding is that the operation of ss 197C(3) of the Act neither requires nor authorises the Applicant’s removal to Iran under s 198 of the Act so long as the protection finding remains in force and the Applicant does not request removal to Iran, at which point he will no longer be subject to a protection finding under the Act. I therefore give this Other Consideration neutral weight.
Other Consideration (a)(i): Indefinite Detention and other Legal Consequences of the Decision
As is contemplated by Ministerial Direction 90, the list of Other Considerations is not exclusive. In the circumstances, I find that as the Applicant cannot be removed to Iran in the event that he is not successful in this application for revocation of the mandatory cancellation, I will consider the additional arguments raised regarding indefinite detention and other legal consequences of the Decision.
It was clear at the hearing of this matter that the Applicant understood that he may have to indefinitely remain in detention. It is however open to the Minister to consider alternative management options available, including those under ss195A and 197AB of the Migration Act or resettlement in a third country. It should be noted however that there is no probative evidence before me that the Minister has had any consideration of these options.
The reality is that the Applicant is likely to remain in detention for a prolonged period of time, if not for an indefinite detention. I give this aspect moderate weight in favour of revocation of the visa.
The Respondent agrees that, should this Tribunal decide not to revoke the Applicant’s visa cancellation, there are provisions of the Act that would prevent the Applicant from making application for a substantive visa while in the migration zone.[20] This is, however, balanced against the requirement that I deal with the legal consequences of a decision to not revoke the visa cancellation.[21]
[20] Sections 501E & 48A of the Act.
[21] NBMZ v Minister for Immigration and Border Protection (2014) 220 FCR 1.
I note that the Applicant has claimed that this Tribunal should consider the risk of breaching international obligations in the event that I affirm the decision to not revoke the mandatory cancellation of the Applicant’s visa. I have profoundly considered this claim and have come to the conclusion that the non-revocation of the mandatory cancellation of the Applicant’s visa by this Tribunal would be characterised as an administrative procedure and exercise of discretion well established by law. Furthermore, the exercise of the power in this Tribunal to review, on a merits review basis, pursuant to s501CA of the Act, is a judicial decision that should any way, obstructed, in its function of determining or punishing criminal guilt.[22]
[22] Falzon v Minister for Immigration and Border Protection [2018] HCA 2 at 88.
Further, the Applicant invited me to consider the significant cost in detaining the Applicant indefinitely. With regards to this submission, I agree with the approach that was brought to my attention by the Respondent of SM O’Donovan in FRLH and the Minister for Immigration and Citizenship, Migrant Services and Multicultural Affairs (Migration).[23] In that matter the Senior Member said:
“The costs of managing Australia’s visa programs are matters for the Commonwealth government. The Minister has the tools for managing the costs of detention by utlising various statutory options such as community detention or using his non-compellable powers. Neither the terms of the Direction or the scope and purpose of the Migration Act suggests that the cost to the Australian government of a particular visa outcome is relevant to whether a visa should or should not be granted. I do not consider it appropriate, indeed it may not even be lawful, to consider the cost of removing someone from the community as a basis for favourable exercising a discretion enlivened by concerns about their character.”
[23] [2022] AATA 58 at [143]
For the reasons given above, I give moderate weight overall in favour of the Applicant in respect of this additional Other Consideration (a)(i) which I have described as ‘Indefinite Detention and other Legal Consequences of the Decision’.
Other Consideration (b): Extent of Impediments if Removed
Paragraph 9.2 of Direction 90 requires a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
As there is no current contention that the Applicant will be removed by the Minister to Iran (due to the provisions of s197C of the Act), I therefore give neutral weight to this Other Consideration.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 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.
No material was adduced in relation to victim impact, therefore, I give no weight to this consideration.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I consider each in turn.
(1) The strength, nature, and duration of ties to Australia
With reference to the first part of this Other Consideration, I will consider three elements. Firstly, I will assess the impact of a refusal decision on the Applicant’s, “immediate family members”, where those people have a right to remain in Australia indefinitely. Secondly, I will assess the impact of a refusal decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community, including family or social links. I address each component in turn.
(i) Impact of non-revocation on the Applicant’s immediate family
The only family member the Applicant claims to have in Australia is a sister. Other than a mention of her existence, no evidence was adduced by the Applicant in respect of likely impact of non-revocation on this family member. There is no evidence of the Applicant having any other, strong or otherwise, family or social links to Australia.
(ii) Strength, nature, and duration of “other ties”
The Applicant is a 55 year old man who came to Australia circa 12 years ago. There is some evidence of the Applicant making a contribution to the Australian Community, including through his employment as a handyman from 2015 to 2017 which I give this aspect some weight in the Applicant’s favour.
Whilst the Applicant’s offending has been regular and lengthy, it appears that he did not commence offending shortly after arrival and therefore the amount of weight to be allocated to this portion is not lessened.
As for the strength, nature, and duration of “other ties” including family and other social links, the Applicant also has a friend here in Australia who gave evidence. I accept that it is likely he also has additional social links and I therefore allocate some weight for this too.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”.
The Applicant has not claimed to have any links in Australia that would have an impact on Australian business interests.
Weight allocable to Other Consideration (d): links to the Australian community
The Applicant has limited links to the Australian community and for that reason I give little weight to this consideration.
Finding: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a) international non-refoulement obligations: neutral weight in favour;
(i)Indefinite Detention and other Legal Consequences of the Decision: moderate weight in favour of revocation;
(b) extent of impediments if removed: not relevant;
(c) impact on victims: not relevant here;
(d) links to the Australian community: carries a some weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is “another reason”, pursuant to the Direction 90, to revoke the cancellation.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction and find as follows:-
·Primary Consideration 1: heavy weight against revocation;
·Primary Consideration 2: not relevant;
·Primary Consideration 3: not relevant; and
·Primary Consideration 4: heavy weight against revocation.
I have outlined the weight attributable to the Other Considerations and find that the combined weights allocated to Primary Considerations 1 and 4 outweigh the weights allocated to the Other Considerations.
A holistic view of the evidence relevant to the Primary and Other Considerations in Direction 90 weighs in favours of a non-revocation of the delegate’s decision such that the mandatory cancellation of the Applicant’s Visa remains.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate for the Minister for Home Affairs on 29 August 2022 to cancel the Class XA Subclass 866 Protection visa pursuant to section 501CA(4) of the Migration Act 1958 (Cth).
I certify that the preceding 112(one-hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member A Julian-Armitage
...............................[SGD]................................
Associate
Dated: 31 January 2023
Dates of hearing:
Date of final submissions:
8 & 9 November 2022
9 November 2022
Solicitors for the Applicant:
Solicitor for the Respondent:
Eric Zhang
Human Rights for All Pty LtdJake Kyranis
Sparke Helmore LawyersAnnexure A – Exhibit Register
EXHIBIT PARTY DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED 1 R Section 501 G-Documents
(G1-G28, paged 1-259)Various 8 Sep 2022 2 R Respondent’s Statement of Facts, Issues and Contentions dated
14 October 2022
(19 pages)14 Oct 2022 14 Oct 2022 3 R Respondent’s Tender Bundle
(R1-R12, paged 1-278)Various 14 Oct 2022 4 A Applicant’s Statement of Facts, Issues and Contentions dated
30 September 2022 (pages 1-71) &
Annexure A (pages 72-83)30 Sep 2022 14 Oct 2022 5 A Applicants Tender Bundle Vol 1
(ATB1-38, paged 1-1,469)Various 14 Oct 2022 5.1 A Applicants Tender Bundle Vol 2
(ATB2-1 – 10, paged 2-134)Various 21 Oct 2022 5.2 A Applicants Tender Bundle Vol 3
(ATB-3-1-21, paged 2-392)Various 21 Oct 2022 6 A Applicant’s Bundle of Authorities
(ABA 1 – 107, paged 1-4,681 [Electronic])Various 14 Oct 2022 6.1 A Applicant’s Submissions in reply dated 21 October 2022 (pages 1-23) & Annexure A (pages 24-26) 21 Oct 2022 21 Oct 2022 7 A Applicant’s Second Statutory Declaration affirmed
30 September 2022 (2 pages) &
Annexures (AC2-01 – AC2 – 09, 81 pages)30 Sep 2022 30 Sep 2022 8 A Applicant’s Third Statutory Declaration affirmed
30 September 2022 (9 pages) &
Annexures (AC3-01, 5 pages)30 Sep 2022 30 Sep 2022 9 A Mr SZ Statutory Declaration affirmed 26 September 2022
(9 pages) &
Annexures (AC2-01 – AC2 – 09, 81 pages)
& Includes a cover letter from the Applicant’s legal representative, Mr Zhange of Human Rights for All dated 30 September 202226 Sep 2022
30 Sep 202230 Sep 2022 10 A Medical report of Dr MS(Psychologist) dated
27 September 2022 (16 pages)27 Sep 2022 30 Sep 2022 11 A Confidential report of Ms AP (QPSATT Counsellor) dated
15 September 2022 (8 pages)15 Sep 2022 30 Sep 2022 12 A Letter of Ms DW dated
7 July 2022 (1 page)7 July 2022 30 Sep 2022 13 A Community Protection Assessment Tool - Client Data (22 pages) 18 Nov 2021 30 Sep 2022 14 A Amended Medical report of Dr MS (Psychologist) dated
12 October 2022 (16 pages)12 Oct 2022 21 Oct 2022 15 A Additional Confidential report of Ms AP (QPSATT Counsellor) dated 15 September 2022 (2 pages) 3 Oct 2022 3 Oct 2022 16 A Traffic Offenders Program, completed 29 October 2022
(2 pages)29 Oct 2022 9 Nov 2022 17 A Applicant’s Bundle of Authorities Vol 2
(1-8, paged 1-240 [Electronic])Various 9 Nov 2022
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
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