XRKB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 33

XRKB and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] ARTA 33 (11 December 2024)
Applicant/s:  XRKB
Respondent:  Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number:                2024/7370

Tribunal:Deputy President S Burford
Place:  Perth
Date of Decision:                11 December 2024
Date of Written Reasons:    24 December 2024

Decision:The decision of the delegate of the Respondent dated 20 September 2024, not to revoke the cancellation of the Applicant’s Resident Return (Class BB) (subclass 155) visa, is set aside and substituted with a decision that the cancellation of the visa is revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

............................................[SGD]............................
Deputy President

Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – expectations of the Australian community – extent of impediments if removed – Applicant is a 48 year old citizen of Myanmar – extent of impediments if returned to Myanmar – impact on Australian business interests – Non-Revocation Decision is set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) ss 2A, 33 and 43
Administrative Review Tribunal Act 2024 (Cth) ss 9, 54, 56(1)(a)
Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) s 3 and Sch 16 Item 24
Drug Court Act 1998 (NSW) s 5
Migration Act 1958 (Cth) 5(1), 15, 36, 48A, 189, 195A, 196, 197C, 197AB, 198, 198(5A), 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501(3A), 501(6), 501(7)(c), 501CA(3), 501CA(4), 501F, 501E, 503
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
Do and Minister for Immigration and Border Protection [2016] AATA 390
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594
Pearson v Minister for Home Affairs [2022] FCAFC 203
Pearson v Commonwealth [2024] HCA 46
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
[Federal Court Decision]
Verril v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802
Khalil and Respondent for Home Affairs [2019] FCAFC 151
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) paras 2, 3, 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1) 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.2.(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(3), 9, 9.1, 9.1.2(2), 9.2, 9.2(1), 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3
Department of Foreign Affairs and Trade Country Information Report: Myanmar dated 11 November 2022
Agence France-Presse, 'South-east Asia's biggest synthetic drugs raid: 200m meth tablets found in Myanmar', The Guardian (online, 19 May 2020) < Douglas, 'Parts of Asia are slipping into the hands of organized crime', CNN (online, 14 November 2018) < Allard, 'Huge fentanyl haul seized in Asia's biggest-ever drugs bust', Reuters (online, 20 May 2020) < Nations Office on Drugs and Crime Report: Synthetic Drugs in East and Southeast Asia 2022. < align="left">Nick Dole, 'Higher towers, smaller homes, fewer car spaces recommended to solve NSW housing crisis', ABC News (online, 11 September 2024) < align="center">Statement of Reasons
THE DECISION IN THIS MATTER WAS MADE AND PROVIDED TO THE PARTIES ON 11 DECEMBER 2024 WITH A NOTE THAT WRITTEN REASONS WOULD BE PROVIDED WITHIN A REASONABLE TIME. THESE ARE THOSE WRITTEN REASONS.[1]
THE APPLICATION
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].

The Applicant seeks review of a decision of a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) under section 501CA(4) of the Migration Act1958 (Cth) (the Migration Act) not to revoke the mandatory cancellation of the Applicant’s Resident Return (Class BB) (Subclass 155) visa. That visa was cancelled on 13 December 2022 under s 501(3A) of the Migration Act.[2]
[2] R1, G41, page 204.
BACKGROUND
The Applicant is a 48-year-old man who has lived in Australia since arriving as a student in 2000.[3] The Applicant was born in [redacted], Myanmar. His mother and father live in Myanmar, and his brother lives in Malaysia.[4]
[3] R1, G42, page 212.
[4] R1, G14, pages 92-93.
The Applicant left Myanmar in 1998 and travelled to Thailand to study architecture. In 2000, he travelled from Thailand to Sydney to continue his studies at the [University].[5] He graduated with a Bachelor of Science (Architectural Computing) in 2003.[6] In 2007, he graduated with a Bachelor of Architecture and began working full-time.[7]
[5] R1, G14, pages 92-93.
[6] R1, G14, pages 92-93.
[7] R1, G14, pages 92-93.
Since leaving Myanmar in 1998, the Applicant has returned ‘four or five times’ to visit his parents. Each trip was less than a month. He was granted the Resident Return (Class BB) (Subclass 155) visa on 24 May 2017 and his last trip to Myanmar was in 2017.[8]
[8] See R1, G39, page 198; G41, page 204; 42, pages 211-212; ASFIC.
On 8 November 2018 the Applicant was convicted of a range of dishonesty, property and traffic offences in the Magistrates Court of [State] ([Suburb] Drug Court).[9] He was sentenced to a term of imprisonment of 18 months imprisonment, suspended on condition he took part in a Drug Court Program. On 14 February 2020, the suspended sentence was cancelled, and the Applicant was finally sentenced to an aggregate term of imprisonment of 18 months with a non-parole period of 11 months.[10] As a result of this conviction and sentence his vis visa was mandatorily cancelled on 17 March 2020.[11]
[9] R1, G6, pages 42-50.
[10] R1, G6, pages 42-50; G8, pages 58-63.
[11] R1, G40, page 201.
The Applicant requested the Minister revoke that cancellation and on 1 October 2020 the cancellation of his visa was revoked by a delegate of the Minister.[12] He was notified of that decision on the same date. The signed acknowledgement stated:[13]
I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be reconsidered.
[12] R1, G40, pages 201-202.
[13] R1, G40, page 203.
He was released from prison on parole in April 2020.[14]
[14] R1, G8, page 63.
On 10 November 2022, the Applicant was convicted of ‘drive motor vehicle during disqualification period’ and ‘possess drug manufacture apparatus make prohibited drug’ in the Local Court of [State] and sentenced to an aggregate term of imprisonment of 18 months.[15]
[15] R1, G6, page 43.
As noted above, as a result of this conviction, on 13 December 2022, the Applicant's visa was cancelled under s 501(3A) of the Migration Act and he was placed in immigration detention (the Cancellation Decision).[16] However, on 22 December 2022, the Applicant’s visa was reinstated following the decision of the Full Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203 (Pearson).[17] That decision related the treatment of aggregate sentences imposed in NSW in cancelling visas under s 501(3A) of the Migration Act.[18] As the cancellation of the Applicant’s visa on 22 December 2022 was based on an aggregate sentence in NSW, he was released from detention on 26 December 2022 following the decision in Pearson.[19]
[16] R1, G41, page 204.
[17] R1, G37, page 192.
[18] Note the decision of the Full Court of the Federal Court was recently found by the High Court to be incorrect and the decision to cancel Ms Pearson’s visa was found not to be invalid by reasons of aggregate sentences having been taken into account: Pearson v Commonwealth [2024] HCA 46 (4 December 2024). However, this point was not at issue between the parties who proceeded on the basis the cancellation was valid (validated in any event by the legislative changes the Migration Act).
[19] R1, G37, page 192.
On 17 February 2023, the cancellation of the Applicant’s visa was validated following an amendment to the Migration Act.[20] On 28 or 29 March 2023, the Applicant was detained by NSW Police and Immigration and was given a copy of a letter dated 17 February 2023 purportedly notifying him of the validation of his visa cancellation.[21]
[20] Migration Amendment Act (Aggregate Sentences) Act 2023 (Cth) (“MAAS Act”); [Federal Court Decision] at [9].. The Tribunal notes several dates appear in the materials. However, the Tribunal has used the date referred to by the Court.
[21] [Federal Court Decision] at [9].
On 7 April 2023, the Applicant made representations to the Minister requesting the cancellation of his visa be revoked under s 501CA(4) of the Migration Act.[22] On 21 April 2023 his request for revocation was deemed invalid on the basis his request was out of time as it was not made within 28 days after the MAAS Act coming into effect, being 17 March 2023.[23]
[22] [Federal Court Decision] at [12].
[23] [Federal Court Decision] at [13]; R1, G5, page 28.
On 8 December 2023, the Federal Circuit and Family Court of Australia quashed the decision made by the Department on 21 April 2023 finding that the 17 February 2023 notification of the invalid as it did not comply with s 501CA(3)(a) of the Act.[24] The Minister was directed to consider whether the Applicant’s visa should be revoked under s 501CA(4) of the Act.^[25]
[24] [Federal Court Decision] at [47].
[25] [Federal Court Decision].
Pursuant to the orders of the Court, the Minister considered the Applicant’s revocation request signed on 5 April 2024 and on 18 September 2024, a delegate of the Minister decided not to revoke the cancellation of the Applicant’s visa (the Non-revocation Decision).[26] The Applicant was notified of that decision via his representative on 20 September 2024.[27] This is the reviewable decision before the Tribunal.
[26] R1, G5, page 27.
[27] R1, G3 pages 16-19.
On 25 September 2024, the Applicant applied to the Tribunal for a review of the Non-revocation Decision pursuant to s 500(1)(ba) of the Migration Act.[28] As the application was made within nine days after notification, it complied with the time limit set by s 500(6B) of the Migration Act. The Applicant is in the custody of the State of Western Australia at [Detention Centre]. Accordingly, the review relates to a person in the ‘migration zone’.[29]
[28] R1, G1 and G2.
[29] As defined in s 5(1) of the Migration Act.
The Tribunal is required by s 500(6L) of the Migration Act to make a decision in relation to this application by no later than 13 December 2024.
LEGAL FRAMEWORK
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, such as where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel a visa should be revoked.
The question for determination by the Tribunal is whether the reviewable decision not to revoke the mandatory cancellation of the Applicant’s visa was the correct or preferable one on the material before the Tribunal.[30]
[30] Administrative Appeals Tribunal Act 1975 (Cth) (repealed) (AAT Act), ss 2A, 33 and 43; Administrative Review Tribunal Act 2024 (Cth) (ART Act) ss 9, 54, 56(1)(a); Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth) (ART Consequential Act No 1), s 3 and Sch 16 Item 24; See also Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140].
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[31] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.[32]
[31] Migration Act s 501CA(3).
[32] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Sub-section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:
(a)the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and
(b)the decision-maker is satisfied that:
(i) the Applicant passes the character test (as defined by section 501); or
(ii) there is another reason why the mandatory cancellation should be revoked.
In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17; (2022) 275 CLR 582 (M1/2021), the majority of the High Court described s 501CA(4) as conferring ‘a wide discretionary power’ to revoke a mandatory cancellation, if the decision-maker (whether the Minister, their delegate or the Tribunal on review of a delegate’s decision) is satisfied that there is ‘another reason’ why the cancellation should be revoked. The majority held that the assessment of whether there was, in fact, ‘another reason’ was to be undertaken by reference to the representations made by the applicant.[33]
[33] See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41; (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594 at [6].
In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must comply with Direction no. 110 given by the Minister under s 499(1) of the Migration Act.[34] The Direction commenced on 21 June 2024.[35]
[34] Direction no. 110, cl 5.1(4); Migration Act, s 499(2A).
[35] Direction no. 110, cl 2.
Informed by the principles set out in paragraph 5.2 of the Direction, the Tribunal must take into account the factors identified in clauses 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application.[36]
[36] Direction no. 110, cl 6.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.
For the reasons below, the Tribunal considers that the decision not to revoke the mandatory cancellation of the Applicant’s visa should be set aside and substituted with a decision that the cancellation of the visa is revoked under s501CA(4)(b)(ii) of the Migration Act.
THE HEARING AND THE EVIDENCE
The Applicant appeared before the Tribunal at a hearing on 21 and 22 November 2024. The hearing was conducted in person at the Perth Registry. The Applicant is currently in immigration detention at [Detention Centre].
The Applicant was represented by Mr McCaw of Counsel, instructed by Ms Bennett from Legal Aid NSW who both appeared by video from NSW. The Respondent was represented by Mr Lettenmaier of Counsel, instructed by Ms Taylor of Minter Ellison. Mr Lettenmaier appeared in person. Ms Taylor appeared by video.
The Applicant gave evidence and was cross-examined at the hearing. The Tribunal also took evidence from [Dr K], clinical psychologist. [Dr K] gave evidence via video.
The Tribunal admitted the following documents into evidence:
·Applicant’s Tender Bundle filed 7 November 2024 (Exhibit A1);
·Applicant’s Supplementary Tender Bundle filed 18 November 2024 (Exhibit A2);
·G-Documents filed 30 September 2024 (Exhibit R1); and
·Respondent’s Supplementary Documents filed 15 November 2024 (Exhibit R2).
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant has been convicted and sentenced for various offences between January 2004 and November 2022.[37] A summary of the Applicant's criminal offending is provided in Annexure A.
[37] R1, G6.
The Applicant has been convicted of a number of offences including:
·property and other offences: goods in personal custody suspected of being stolen (m/v) (20 August 2018); aggravated break and enter dwelling in company steal (<=$6000) (10 counts) (8 November 2018); aggravated break and enter dwelling in company intent to steal (<=$6000) (8 November 2018); Larceny value <=$2000 (8 November 2018); goods in personal custody suspected of being stolen (m/v) (2 December 2019); participate criminal group contribute criminal activity (26 February 2021); goods in personal custody suspected of being stolen (not m/v) (3 February 2022); goods suspected stolen in/on premises (not m/v) (10 November 2022).
·drug offences: possess a prohibited drug (21 March 2018); possess drug manufacture apparatus make prohibited drug (10 November 2022); possess prohibited drug (10 November 2022).
·driving and traffic related offences: drive on road while licence suspended (14 January 2004); use Class A vehicle displaying misleading number plate (27 April 2018); driver not disclose identity of driver/passenger as required (8 November 2018); drive vehicle, illicit drug present in blood – 1^st off (2 December 2019); drive vehicle, illicit drug present in blood – 1^st off (14 February 2020); drive vehicle, illicit drug present in blood – 2^ndoff (22 September 2021); drive while licence application refused – 2^nd + off (22 September 2021); drive while licence application refused – 2^nd+ off (3 February 2022); drive motor vehicle during disqualification period – 2^nd + off (3 February 2022); drive motor vehicle during disqualification period – 2^nd + off (10 November 2022); use unregistered registrable Class C motor vehicle on road (10 November 2022).
·offences involving public officers, police orders and court orders or sentences: fail to appear in accordance with bail acknowledgement (8 November 2018) (3 counts); not comply with notice or direction re COVID 19 (10 November 2022).

The Applicant has received terms of imprisonment (served and suspended), fines, suspensions and disqualifications, and community-based orders for his offences.
The nature and seriousness of the Applicant’s offending and other conduct is considered further below.
The 2018 Drug Court offences and subsequent offending
On 8 November 2018, the Applicant was convicted of a number of offences in the NSW Drug Court (Drug Court offences). The Applicant was sentenced to an aggregate term of 18 months imprisonment for these offences which was suspended under the Drug Court Act 1998 (NSW) (Drug Court Act) to enable the Applicant to participate in a Drug Court rehabilitation program.
While most of the offences in these convictions were property offences, the Applicant submitted, and the Tribunal accepts, that NSW Drug Court’s power to sentence the Applicant was only enlivened by a finding that the Applicant was an ‘eligible person’ under the Drug Court Act. According to that definition the Applicant was a person who was, or appeared to be, dependent on the use of prohibited drugs.[38]
[38] Drug Court Act 1998 (NSW) s 5 as in force between 24 September 2018 and 28 November 2018.
The Drug Court offences included 10 convictions for aggravated break and enter and steal, one count of aggravated break enter and attempt to steal and failing to identify a driver. Those offences occurred between 22 September 2017 and 31 October 2017. According to the sentencing remarks, the offending involved the Applicant in company with others making numerous entries into underground residential carparks where they stole, or tried to steal, people’s property.[39] There was also 3 counts of failing to appear on bail and one count of larceny.
[39] R2, S9, pages 46-49.
According to the sentencing remarks, on 22 September 2017, the Applicant and two co-defendants gained entry to a secure car park and storage area, and removed or manipulated the locks of four storage cages. The storage cages were 'ransacked' with 'a large quantity of personal items… including suitcases, personal belongings etc' being removed. On 29 September 2017, the Applicant and two co-offenders entered a unit complex in [suburb], and successfully opened one garage and stole four amplifiers, four speakers, a tape-desk and a desk-top computer and monitor. They also opened a second another garage, from which they stole two bikes, two suitcases, a number of sports shoes, a watch, jewels and other personal belongings. On 18 October 2017, the Applicant with his co-accused used bolt cutters to enter a storage cage and steal a bicycle. On 22 October 2017, the Applicant and his co-accused went into an underground car park in [suburb] and were challenged by a resident who ran back to her unit after the Applicant and his co-accused started walking towards her. On 31 October 2017, the Applicant entered an underground carpark in [suburb], entered various storage cages using a bolt cutter and stole a number of items including a child's car seat.[40]
[40] R2, S9, pages 46-49.
The sentencing judge observed in 2018 that there had been ‘a lot of offending, some significant crimes’ but noted the Applicant had ‘been in little trouble before’.[41]
[41] R2, S9, page 51.
The Applicant was ordered to participate in various programs to treat drug dependency. The sentencing remarks from the Drug Court in 2020 indicate that he did ‘very well’ initially at [suburb] treatment centre but after his transition to the community in August 2019 ‘commenced a stream of methylamphetamine use which was unadmitted’ and returned several positive tests for use of methylamphetamine. He was returned to court and issued a warning by the Judge and returned to the community. The sentencing judge records that there was further unadmitted methamphetamine use. and eventually the program was terminated on 20 January 2020.[42]
[42] R1, G8, page 60.
Following the Applicant’s rehabilitation program being terminated on 20 January 2020, he was taken into custody.[43] Before the Tribunal the Applicant denied returning to methamphetamine use at that time though he was unable to offer any explanation for the positive test results returned at that time.
[43] R1, G8, pages 60.
The Applicant was finally sentenced for the Drug Court offences on 14 February 2020. In sentencing the Applicant to serve a backdated sentence the Drug Court noted that there had been a ‘marked reduction’ in his drug use and that he had ‘realistic prospects’ of rehabilitation.[44] The Court also noted in the Applicant’s favour that he had not offended while on the program, noting also however that there was a ‘lack of honesty’ on the program and that the Court had been ‘very patient’ with him.[45]
[44] R1, G8, pages 61-62.
[45] R1, G8, pages 60-61.
The Court backdated the Applicant’s sentence to recognise his participating in residential rehabilitation programs, and imposed a non-parole period expiring on 6 April 2020 with a balance of term of seven months.[46] The Applicant did not breach the conditions of his parole for the Drug Court offences, noting however he was taken into immigration custody on release from parole (following the 2020 cancellation of his visa) and was not released into the community until October 2020, following the delegate’s decision to revoke the cancellation of his visa.[47] The Applicant was released from immigration detention shortly after.
[46] R1, G8, pages 60-62.
[47] R1, G40.
According to the Applicant’s submissions to the delegate, after he was released, the Applicant began a new relationship with a woman who was using drugs and he started using ‘ice’ and again got involved in criminal offending.[48]
[48] A1, page 6.
On 26 February 2021, the Applicant was sentenced at [Suburb] Local Court to a 12 month community correction order for participating in a criminal group.[49] On 22 September 2021, the Applicant was convicted and fined $1,500 for driving while licence application refused and with illicit drug present in blood (2nd offence) at [Suburb] Local Court. His driver’s licence was disqualified for 12 months.[50] On 3 February 2022, the Applicant was sentenced to three months imprisonment for driving while licence application refused (2nd offence), driving while disqualified (2nd offence), and goods in custody.[51]
[49] R1, G6.
[50] R1, G6.
[51] R1, G6.
The 2022 drug offence
On 10 November 2022, the Applicant was convicted and sentenced in the NSW Local Court of possess drug manufacture apparatus make prohibited drug and driving a motor vehicle during disqualification period (2nd offence) and four other ‘relatively minor’[52] offences.[53] He received an aggregate sentence of 18 months imprisonment for the possession and driving offence with a non-parole period of 10 months.
[52] R1, G7, page 54.
[53] R1, G6.
According to the sentencing remarks, on 29 September 2021 the Applicant was driving a car with altered registration plates while disqualified. He was pulled over and a police search of the vehicle located the following:[54]
·identity documents not belonging to him;
·a glass vile containing 9.5 grams of gamma-hydroxybutyrate (GHB); and
·items used in the manufacture of prohibited drugs, including a coil condenser, a round bottom flask, a distillation head, a separating funnel and a Pyrex beaker.
[54] R1, G7, pages 54-55.
The sentencing judge found there was no suggestion he had been involved in the manufacture of the drugs directly but that ‘he was at least involved in taking care of the items of equipment that were of significant value and required for the preparation of the prohibited drug’.[55]
[55] R1, G7, page 55.
In evidence to the delegate the Applicant claimed he was driving the car for a friend and was not involved in the manufacture of drugs.[56] He stated he plead guilty when the charge was changed from intent to manufacture to possessing equipment that could be used in manufacturing drugs.[57]
[56] A1, page 7.
[57] A1, page 7.
The sentencing judge observed that the sentence assessment report[58] was positive. However, his Honour rejected the Applicant’s claim that he was delivering the material for a friend and did not know what the equipment was for. His Honour was also satisfied that the drug offence was serious. The indicative sentence for the drug offence was 15 months and seven months for the driving offence. He made a finding of special circumstances based upon the need for rehabilitation.^[59] The Tribunal notes the sentence assessment report noted the Applicant had been assessed as presenting a ‘medium’ risk of reoffending and had been assessed as suitable to undertake community service work.[60]
[58] R2, S2, pages 31-34.
[59] R1, G7, page 57,
[60] R2, S2, pages 31-34, page 33-34.
On 16 December 2022, the Applicant was released on parole from [Suburb] Correctional Centre and immediately taken into immigration detention.[61]
[61] [Federal Court Decision] at [7].
Traffic offending
The Applicant has numerous convictions for driving offences over an extended period from January 2004 to November 2022. This includes repeatedly driving while suspended and driving with illicit substances present in this blood. He has been sentenced to several, albeit short, terms of imprisonment for driving offences.[62]
[62] R1, G6.
REPRESENTATIONS IN ACCORDANCE WITH INVITATION
As noted above, the Federal Circuit and Family Court of Australia determined those representations were made in accordance with the requirements of the Migration Act and that the Minister’s later purported notification (of the validation of the cancellation decision) on 17 February 2023 was not valid. The Court directed the Minister to consider revocation of the cancellation of the Applicant’s visa under s 501CA(4).[63]
[63] [Federal Court Decision]. The Tribunal notes the orders refer to the Minister considering ‘whether to revoke the applicant’s visa’ however this appears to be a typographical error as not such power arises under s 501CA(4) and the Minister’s subsequent action was to ‘consider whether to revoke the cancellation of the applicant’s visa’ consistent with the powers under the Migration Act. The Tribunal has proceeded on the basis this was the intention of the order as these is no suggestion the cancellation was invalid.
In so far as the issues arises in the current case, having regard to the orders of the Federal Circuit and Family Court of Australia on 9 December 2023, the Tribunal is satisfied made representations for the purposes of s 501CA(4)(a) of the Migration Act This was consistent with the approach adopted by the delegate and was not at issue between the parties.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[64] Migration Act s 501(7)(c).
[65] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[64] Failure to pass the character test arises as a matter of law.[65]
As noted above, on 10 November 2022, the Applicant was convicted of drive motor vehicle during disqualification period and possess drug manufacture apparatus make prohibited drug in the Local Court of NSW and sentenced to an aggregate term of imprisonment of 18 months.[66]
[66] R1, G6, page 43.
The Applicant acknowledged that he does not pass the character test.[67]
[67] ASFIC.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[68]
[68] See Migration Act s 501CA(4)(b)(i).
CONSIDERTION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[69] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[69] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
Direction no.110
On 7 June 2024, the Minister made ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No 99.[70]
[70] Direction no. 110 sections 2-3.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[71] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction no. 110 where relevant to the decision.[72]
[71] Direction no. 110 para 5.1(4).
[72] Direction no. 110 section 6 referring to sections 8 and 9.
Informed by the principles set out in para 5.2 of the Direction, the Tribunal must take into account the factors identified in sections 8 and 9 of the Direction (to the extent relevant in the particular case) in deciding the application (the ‘primary’ and ‘other’ considerations).[73]
[73] Direction no. 110, para 6.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[74]
(a)the protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
[74] Direction no. 110 section 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[75]
(a)   the legal consequences of the decision;
(b)   the extent of impediments if removed; and
(d)   the impact on Australian business interests.
[75] Direction no. 110 section 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in section 7, which provides that:
·Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
·The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the ‘other considerations’.
·One or more primary considerations may outweigh other primary considerations.
Is there another reason why the cancellation decision should be revoked?
The Applicant submitted that there were several reasons why the cancellation of the visa should be revoked. In his application for review, the Applicant claimed that Minister’s decision was wrong for the following reasons:^[76]
The decision is wrong because it did not give enough weight to the positive actions I have undertaken since last offending, when considering the protection of the community and risk of reoffending. The decision focuses too much weight on my previous relapse instead of my current situation and my commitment to rehabilitation since last offending. Since reoffending, I have undertaken a lot of positive steps to rehabilitation, including drug treatment programs, mental health treatment and driving programs. My sobriety and my conduct was tested in the community when I was released on parole between December 2022 until March 2023. I am very remorseful and take full accountability and responsibility for my actions which led me to where I am today, and I intend to never put myself in such a position again. I have the tools and skills to make better choices in the future. I do not believe these factors were given enough weight by the delegate when coming to their decision.
I believe my strength, nature and duration of ties to Australia should have been given more weight in my favour. I have lived over 2 decades in Australia having worked as a highly skilled architect as well as volunteered and I have provided many character references that speak to my positive character.
I am also terrified of returning to Myanmar, and I do not think it is correct to suggest that just because I returned briefly few times to Myanmar in the past that my claims fall outside the concept of non-refoulement and the international obligations framework.
[76] R1, G2, page 9.
He detailed the reasons why he considered there was another reason why the cancellation decision should be revoked in his ASFIC and in oral submissions to the Tribunal. In summary the Applicant’s key claims were that:[77]
·He accepts that he does not pass the character test, but says that his ties to Australia, the progress he has made in his rehabilitation, and the effect of being returned to Myanmar amount to another reason why the cancellation should be revoked.
·He faces the prospect of being removed to Myanmar, ‘a country embroiled in a violent civil war with no end in sight’. He has not spent any significant time in Myanmar since he left in 1998, and only has aging family that remain in the country.
·He has spent approximately half his life, and most of his adulthood, living and working in Australia as a permanent resident. His criminal offending, while serious, was ‘non-violent and unquestionably connected to his drug addiction from which he has largely rehabilitated himself’.
[77] ASFIC, Applicant’s Reply.
The Minister submitted, in summary, that the protection of the Australian community and the expectations of the Australian community weigh against revocation noting in particular Applicant’s extended history of serious offending, failed rehabilitation efforts in the past, reoffending following a formal warning of the implications of further offending on his migration status and moderate risk of reoffending. Further, the countervailing other considerations including the legal consequences of the decision, extent of impediments if removed, and the Applicant's links to the Australian community, should not be found to outweigh the primary considerations that weigh heavily against revocation. The Minister contended in particular that any claims to be owed non-refoulement obligations could be deferred for consideration in the context of a protection visa application, the Applicant had limited ties to the community and family in Myanmar to support his return there. Other considerations were not relevant to the application or carried minimal weight.[78]
[78] RSFIC
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have 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.[79]
[79] See also Direction no. 110 para 8(1).

As noted earlier, Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[80]
[80] Direction no. 110 para 7(2).
Paragraph 8.1(2) of Direction no. 110 provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and 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
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[81] In doing so, paragraph 8.1.1(1) of Direction no. 110 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be ‘serious’. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[82]
[81] Direction no. 110 para 8.1(1).
[82] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the Applicant's criminal offending or other conduct to date, the Tribunal must have regard to the frequency of the Applicant’s offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending; 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 addition, Direction no. 110 introduced a requirement under this section that the Tribunal consider the impact of the offending on any victims and their family, where information regarding this is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[83]
[83] Direction no. 110 para 8.1.1(1)(d).
The Applicant contended that he is drug-free, remorseful and will not reoffend. He contended he was not a violent offender and has been drug free for a significant period, including in the community and in immigration detention where drug use is common. He submits there is no risk he will reoffend. The Minister contends that the Applicant’s offending was serious, and he represents an ongoing risk of reoffending.
The Applicant did not deny that he has repeated offences including drug possession, break and enter, and traffic offences and that his consideration would weigh against him. However, he contended the following should be taken into account in determining the weight to be given to this consideration:
·none of the offences committed by the Applicant fell within the categories of offending to be regarded as ‘very serious’ under Direction 110 and the seriousness of the offences and the harm caused is ‘less than what one would expect would be caused by offending involving violence or family violence, particularly offending against vulnerable people’;
·the seriousness of his offending occurred over a relatively short period and has declined in significance over time;
·all the Applicant’s offending between 2017 and 2022, was connected to his dependency on methylamphetamine and the Applicant has admitted that he was on drugs when he committed most of the offences.[84] The Delegate accepted that his offending ‘has been a result of his ongoing drug addiction and from a potential underling trauma or mental related issues’.[85]
[84] R1, G7, G8, G10; R2, S7, S8.
[85] Statement of Reasons for decision under s 501CA of the Migration Act 1958 dated 18 September 2024, [37].
The Applicant accepted that after he received the warning from immigration, and he knew that his visa status would be threatened if he committed further offences but that his decision making and judgment was impaired when he resumed using drugs with his new partner.[86] That relationship had ended and the Applicant was now able to act on his awareness of the consequences of his drug use and offending.
[86] ASFIC, A1, page 9.
The Applicant explained his illicit drug use in the context of health and work stresses. He contended that in 2016, he had surgery for treatment of sleep apnoea, a condition he had had since 2013. The surgery was only partially successful, and the Applicant continued to have difficulty sleeping. In part due to stresses at work and in part due to his poor physical and mental health, the Applicant began using methylamphetamine regularly.[87] He claimed that in 2017, a combination of poor mental health, increased drug use, and lack of sleep led a decline in his performance at work. He was issued several warnings before he was made redundant from a company he had worked at for 11 years.[88]
[87] ASFIC, A1, page 3.
[88] ASFIC, A1, page 3.
As noted above, the Applicant has been convicted of a significant number of offences between 2018 and August 2022. These include:[89]
·Numerous drug offences including possessing drug manufacturing equipment;
·Numerous driving offences over a significant period including driving with a prescribed illicit drug, multiple counts of driving under suspension and using an unlicenced vehicle; and
·Property and dishonesty offences including aggravated break, enter and steal offences, larceny and possession of stolen or unlawfully obtained property.
[89] R1, G6.
He has received, fines, licence disqualifications, and terms of imprisonment (suspended and unsuspended) totalling more than 4 years.
Applying Direction no. 110, the Tribunal notes it is required to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’. While none of the Applicant’s offending falls within the conduct described in these provisions, it is clear that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of Direction no. 110. In the Tribunal’s view, such crimes would include serious drug offences and aggravated property offences.
Notwithstanding none of the Applicant’s offending falls within the categories outlined in para 8.1.1(1)(a) or 8.1.1(1)(b) of Direction no.110 and, having regard to the offending history detailed above and the evidence regarding the circumstances of those offences, the Tribunal considers the Applicant’s record of conduct and offending is still serious.
The offences which gave rise to the latest mandatory cancellation of the Applicant’s visa were committed in September 2021. This followed a previous sentence of imprisonment resulting from the cancellation of a Drug Court rehabilitation program and a warning of the serious immigration consequences which may flow from further offending in the form of a prior cancellation of his visa.
The Minister contended that the sentence imposed by the Court reflects the seriousness of the offences noting that dispositions involving incarceration are of last resort.[90] The Tribunal tends to agree. A sentence of 19 months imprisonment, while well below the maximum sentence available, is not insignificant. Further, the reason the Applicant was finally sentenced and imprisoned with respect to the Drug Court offences was his failure to complete the rehabilitation offered to him as an alternative to incarceration. In the Tribunal’s view the imposition of that final sentence reflects the seriousness of the Applicant’s failure to comply with the rehabilitation program and to avail himself of the opportunity for reform.
[90] Paragraph 8.1.1(1)(c) of Direction no. 110.
The Minister also contended that the Applicant's criminal history revealed a pattern of ‘relatively regular offending’ which carried a significant cumulative effect over time and indicated a ‘flagrant disregard for the laws in Australia’.[91] Again, the Tribunal accepts this submission noting in particular that the Applicant’s repeated conduct in driving while suspended, including in one instance a week after a 12 month suspensions was imposed,[92] displays a lack of regard for laws put in place to maintain the safety of road users in Australia. Such offending and conduct is serious.
[91] Paragraph 8.1.1(1)(e) and 8.1.1(f) of Direction no. 110; RSFIC at [28].
[92] R1, G7, page 54.
The Minister also contended that the Applicant's conduct demonstrates a disregard for the warnings of both the Court and the Department noting his failure to successfully engage in drug rehabilitation opportunities afforded to him by the Courts[93] and the Applicant’s failure to heed the warning in October 2020 when a delegate decided to revoke the prior cancellation of the Applicant’s visa.[94] The Tribunal agrees this conduct adds to the overall assessment of the Applicant’s conduct and offending as serious. The Tribunal considers the Applicant’s inability to heed prior warnings reflects poorly on this respect for the law and on his ability to maintain a prosocial lifestyle even when faced with serious consequences of his actions. While the Applicant acknowledged he had been unable to heed warnings in the past, this was due to ongoing addiction issues which were now resolved. While the Tribunal accepts the Applicant’s conduct was linked to his substance abuse issues the Tribunal does not accept that lessens the seriousness of that conduct.
[93] R1, G8, page 60.
[94] R1, G40, page 201; see paragraph 8.1.1(1)(h) of Direction no. 110.
However, The Tribunal does accept that the Applicant has had long periods in the community where, on the whole, his conduct was prosocial and positive. This is in his favour. In addition, it appeared on the evidence that following his release in response to the decision in Pearson, he maintained a prosocial lifestyle in the community and had taken steps to maintain his rehabilitation program. Again, this weighs in his favour as positive conduct suggestive of a commitment to rehabilitation.
Further in the Tribunal’s view while the Applicant’s offending was serious, it was at the lower end of seriousness of offending of its type, noting his drug offences related to possession of equipment and no large quantities of illicit drugs were located and the Applicant was not convicted of manufacturing drugs. Further, the property offences while aggravated and serious in their repetition did not appear of the nature such as to have put members of the public at risk or to have caused significant damage or injury. While this does not excuse the offending, it somewhat lessens the overall assessment of its seriousness.
The Tribunal notes there was also information in the material before the delegate and reflected in the delegate’s decision suggesting the Applicant had failed to declare his conviction for driving while his licence was suspended in 2004 had not been declared on incoming passenger cards in 2002, 2015 and 2017.[95] The Minister did not refer to this material before the Tribunal and while the Tribunal accepts these may evidence the provision of false or misleading information to the Department, the Tribunal does not consider that conduct adds to the overall assessment of the Applicant’s conduct or offending.
[95] R1, G39, pages 198-200.
In the Tribunal’s view, having regard to the evidence and circumstances of the offences, the Applicant’s offending was serious and weighs against revoking the cancellation of his visa.
Risk to the Australian community should the Applicant commit further offences
The Tribunal is required to assess the risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct and the likelihood of the Applicant engaging in such conduct.[96] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[97]
[96] Direction no. 110 para 8.1.2(2)(a) and (b).
[97] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
The Applicant accepted there was a risk to the community if he were to reoffend but contended that the likelihood of such conduct was low.[98]
[98] ASFIC.
The Minister contended there was a real risk the Applicant would reoffend having regard to the dishonest nature of his offences, a lack of demonstrated rehabilitation and failed rehabilitation in the past. The Minister contented the Tribunal should accept the sentencing assessment report conclusion in 2022 that the Applicant presented a ‘medium risk of reoffending’.[99]
[99] RSFIC; R2, S5, page 33.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[100]
[100] Direction no. 110 para 8.1.2(2)(a).
The Minister contended that should the Applicant reoffend, the Australian community would be exposed to physical and psychological harm arising from the consumption and proliferation of drugs in the community, the harm caused from depriving the members of the community of their personal property, the harm to people confronted on their property by offenders under the influence of illicit substances and risks resulting from unsafe and unlicenced driving.[101]
[101] RSFIC, Direction no.110 paras 8.1.2(1), 8.1.2(2)(a).
The Applicant contended that while there is a risk to the community if the Applicant were to reoffend, that harm is limited to the harm that would flow from the types of property and traffic offences. It was submitted this is not the type of harm that is so serious that any risk that it may be repeated would be unacceptable.[102]
[102] ASFIC Reply; Direction no. 110, para 8.1.2.(1).
It is clear that production and use of illicit drugs causes widespread harm in the community. While the Applicant maintained further offending would not cause harm associated with proliferation of drugs as he was not convicted of manufacturing drugs, the use of illicit substances supports the ongoing market for drug production in the community. Further, the Applicant’s offences were serious because they involved the possession of drug manufacture equipment which the sentencing judge observed was highly specialised equipment having limited use in the community other than for the manufacture of drugs.[103] As such, the Tribunal considers that offence is connected to the harms associated with drug manufacture in the community in a manner contemplated by the Direction. Were the Applicant to commit further drug offences, physical, psychological and economic harm would be caused to those who purchase and consume drugs, and to those members of the Australian community who suffer as a result of the criminal conduct which is caused by drug use.
[103] R1, G7, page 56.
Further, the Applicant’s repeated driving offences, including driving under the influence of illicit substances and driving while suspended, place members of the community, and in particular other road users, at risk of physical harm. Were such offences to be repeated the harm which would be caused is serious. Similarly, the Applicant’s dishonesty and property offences cause financial loss to the community and further offending of a similar kind would cause similar harm to the community. Such harm is serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[104]
[104] Direction no. 110 para 8.1.2(2)(b).
The Applicant claimed he was rehabilitated and presented no risk of reoffending. The Minister contended there is real risk that the Applicant will reoffend, weighing strongly against revocation and outweighing other primary considerations.[105]
[105] Direction no. 110 para 7(2).
Before the Tribunal, the Applicant claimed largely to have abstained from drugs since entering detention. He had self-reported to medical staff at the detention centre that he had taken methylamphetamine about six months ago to support a friend who was going through a difficult time and offered him drugs and he took them to make his friend feel better.[106] He claimed to have been clean since that relapse. He pointed to the ease of obtaining drugs in detention and his determination to resist drugs not withstanding they were widely available as an indication of his commitment and capacity to refrain from illicit drug use which was the underlying cause of his offending.
[106] A1, page 9, [59].
The Applicant offered a report from [Dr K], clinical and forensic psychologist, dated 12 November 2024. [Dr K] also gave evidence before the Tribunal. In her report, [Dr K] finds that the Applicant is in partial remission for substance abuse disorder and presents a moderate risk of re-offending ‘if he does not engage in intervention that targets his criminogenic needs’.[107]
[107] A2, pages 5-16.
In her conclusion, [Dr K] recorded the following:[108]
[108] A2, pages 15-16.
·The Applicant did not present with symptoms that meet the criteria of a mental disorder/illness. He reported some symptoms of anxiety related to sleeping arrangements at the detention centre and his immigration matter.
·The Applicant has a history of Substance Use Disorder and he is currently in partial remission for the condition.
·The Applicant had likely previously met the criteria for Adjustment Disorder with Anxiety and Depressed Mood in response to various life stressors.
·It is recommended the Applicant continue to attend psychological therapy sessions in detention. It would be helpful for the psychologist to include drug and alcohol counselling into the therapy sessions.
·It is recommended that the Applicant continue to attend SMART Recovery groups in detention.
·If the Applicant is permitted to return to the community, it is recommended that he engage in psychological counselling (every two to three weeks) and drug and alcohol counselling (weekly to fortnightly) for at least the first six months. The frequency of further sessions will be determined by his therapists.
·If the Applicant is permitted to return to the community, it is recommended that he continue to attend weekly SMART Recovery groups.
·The Applicant has a moderate risk of re-offending if he does not engage in intervention that targets his criminogenic needs.
·Having access to community support would be essential to reducing his likelihood of further problematic behaviours.
·The Applicant will likely cope poorly with a removal to Myanmar and, in turn, be at risk of relapsing to Adjustment Disorder and Substance Use Disorder in Myanmar. It appeared unlikely to [Dr K] that he will be able to access treatment in Myanmar.
It was submitted that the Applicant actively took steps to obtain treatment when last in the community, and that he has continued to do so while in detention, as reflected in IHMS documents, which evidence positive progress.

The Minister contended there is a real risk the Applicant will reoffend noting:
·The Courts had commented on several occasions regarding the Applicant’s dishonesty with respect to the Drug Court rehabilitation;[109]
·The Applicant has had an opportunity for a Drug Court supervised drug rehabilitation and was unsuccessful in that program and struggled to maintain his sobriety;
·While the Applicant has attended some programs in detention, he admitted to having used ‘ice’ several times this year;[110]
·The Applicant’s ability to maintain prolonged abstinence from drug use in the community has not been tested;
·The Tribunal could not force the Applicant to undertake ongoing treatment and on that basis the treatment gains predicted by [Dr K] if he were to complete treatment could not be assumed.
[109] R1, G7, page 55; G8 page 60; RSFIC.
[110] A1, page 9.
The Minister contended that these factors demonstrated that participation in court ordered drug rehabilitation, ongoing drug and alcohol related-coursework and treatment with a psychologist has not been sufficient to rehabilitate the Applicant's substance abuse and that the Tribunal could not be satisfied that the risk of reoffending, particularly as it relates to substance use, is substantially mitigated.[111] On this basis the Minister contended that the Tribunal should prefer the conclusion reached in the 4 November 2022 sentencing assessment that the Applicant posed a 'medium risk of re-offending'.[112]
[111] RSFIC.
[112] R2, S5, page 33.
The Tribunal also accepts the Applicant’s desire to abstain from further drug use and not to reoffend is genuine. The Tribunal accepts he regrets his past drug use. However, the Applicant’s history with respect to the failure to complete supervised rehabilitation cannot be ignored and causes a significant concern regarding his ongoing risk of reoffending.
In the end, [Dr K]’s assessment was largely consistent with the sentencing report in that the Applicant is assessed to pose a moderate risk of reoffending if he cannot successfully complete rehabilitation and returns to drug use. While the Applicant suggested this was effectively limited to circumstances where he was not accessing treatment, [Dr K] confirmed in evidence that his risk is moderate until he reaches a certain phase of his treatment which would likely be about 6 months after his release into the community. Given this the Tribunal considers the Applicant presents a moderate risk of reoffending at the present time.
Of course the Tribunal cannot order the Applicant to undertake further rehabilitation nor supervise his doing so. In circumstances where the Applicant has failed to follow through on treatment in the past this is a significant concern. However, the Tribunal notes the Applicant’s efforts to connect with support and rehabilitation services when last released into the community and his self-report of drug use in detention in the context of seeking treatment there were positive indicators of progress. The Tribunal also notes [Dr K]’s positive assessment of his prospects for success and indicators he is committed to rehabilitation including his self-reporting of drug use in detention.
Further, the Tribunal notes the Applicant has relatively limited connections to the community as a result of cutting ties with antisocial peers and does not appear to have a strong pro social network. In the Tribunal’s view this is a risk factor for reoffending. However, the Applicant has demonstrated a commitment to identifying and securing pro social support and it appeared he had some contacts and relationships in this regard.
While the Tribunal has some concerns regarding the Applicant’s insight into his offending and his ability to maintain his commitment to remaining drug free, the Tribunal considers the Applicant has benefited from his time in prison and detention and the opportunity this has given him to seek treatment and support. While this has not lowered his current risk of reoffending it has put him on the pathway to reducing that risk, identified by [Dr K], which is to his credit.
The Tribunal also considers that there is a risk that the Applicant’s offending, which included periods when the Applicant claimed to have been drug free, such as repeated driving offences, would reoccur. While that offending was less serious, it represents a risk to the community and demonstrates a disregard for the laws put in place to ensure the safety of the community.
While there was limited evidence of pro social community support available to the Applicant, there was evidence of employment and social support at the time the representations were made.[113] There was also evidence of some supports available to him on release including through Legal Aid casework officer who offered a report on case planning support available to the Applicant.[114] In that report [M/s P], a senior caseworker and social worker with Legal Aid. That report identified some barriers to the Applicant accessing community residential programs including due to restrictions and waitlist. However, it did offer a collection of options for treatment tin the Applicant’s local area and short-term case coordination through Legal Aid to navigate treatment options and options for reducing social isolation. These supports offer the Applicant some additional assistance in accessing services and supports in the community and to maintaining a pathway to sobriety and prosocial community engagement.
[113] R1, G36, pages 186-191.
[114] A2, Page 17-20.
As noted above, the Tribunal considers the Applicant currently presents a moderate risk of reoffending. Having regard to the information before it, the Tribunal considers that while the Applicant’s commitment to remaining drug-free and not reoffending are commendable, his ability to maintain that commitment is untested and prior efforts have been unsuccessful despite considerable rehabilitation support. This creates an ongoing risk of reoffending.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs moderately against revocation.
Family Violence committed by the Applicant
Paragraph 8.2 of Direction no. 110 provides that the Tribunal must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence. Accordingly, the Tribunal considers that this consideration is not relevant in the Applicant’s case.
Strength, nature and duration of ties to Australia
The Tribunal is required to consider any impact of the decision on the Applicant’s immediate family members in Australia.[115] The Tribunal must also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regarding to how long he has resided in Australia and the strength, duration and nature of any family or social links with citizens, permanent residents and/or people who have an indefinite right to remain in Australia.[116]
[115] Direction no. 110, cl 8.3(1).
[116] Direction no. 110, cl 8.3(2).
The Applicant has lived in Australia since 2000, having arrived when he was 24 years old. He has largely remained here. He completed tertiary studies in Australia and worked in a professional capacity as an architect here until 2017. While the Applicant stated that his friends, as well as some extended family, all live here, there was no evidence from family members in Australia and limited evidence form community members.[117]
[117] R1, G14, pages 92-93; G36, pages 185, 186, 187, 189, 190, 191.
The Applicant contended that he has lived in Australia for most of his adult life. He was employed, part-time or full-time, for over a decade and has only travelled overseas for short periods.[118] While the Applicant conceded there was an absence of any specific familial ties to the Australian community he contended he has built a life here from 2000 until 2017 which should be given due weight.[119] It was contended that his social connections were necessarily limited by his commitment to cut ties with anti-social peers from the past and that this should not be weighed against him.
[118] A1, pages 3-4.
[119] ASFIC Reply.
The Minister contended that there is limited evidence before the Tribunal of pro-social relationships with people in the Australian community and that only slight weight should be afforded to this consideration in the Applicant’s favour.
The Tribunal acknowledges the length of time the Applicant has spent in Australia and the fact he considers it to be his home. While his current ties are limited, the Tribunal accepts he has had a significant period where he made a positive contribution through his work and that were he able to maintain his sobriety he may be able to reform prosocial and professional ties here.
This consideration weighs moderately in favour of revocation.
Best interest of minor children
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ. Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant.
There were no children identified in the material before the Tribunal who would be affected by the decision. The Applicant did not suggest at the hearing that there were any children in Australia who would be affected and acknowledged he has no children of his own.
Accordingly, the Tribunal considers this consideration is not relevant in the Applicant’s circumstances.
Expectations of the Australian Community
The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction no. 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
Paragraph 8.5(3) of Direction no. 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Tribunal does not consider that the Applicant’s offences are of the kind contemplated by sub-paragraphs 8.5(2)(a)–(f). However, the Tribunal has found that his offending history is serious, including repeated drug, property and traffic offending resulting in several terms of imprisonment. The Tribunal has also found that there is a moderate risk the Applicant will reoffend. This raises serious character concerns and the Tribunal finds the Australian community would expect that the Applicant’s visa would remain cancelled. Accordingly, the expectation of the Australian community weighs against revocation.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Applicant contended that Australia is a ‘nation built on second chances’ and that ‘the community would certainly not be vengeful’. He submitted that he had already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment.[120] However, the Tribunal considered that submission went beyond the weight to be afforded to the consideration and asked the Tribunal to substitute its own view of the expectations for that deemed by the Direction no. 110. The Tribunal does not consider it is open to it to do so.
[120] Do and Minister for Immigration and Border Protection [2016] AATA 390.
In weighing this consideration, the Tribunal is guided by the principles in para 5.2 of Direction no. 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community. However, the principles also note the increased tolerance afforded to non-citizens who have been in the community from a very young age or for most of their lives. Although the Applicant did not spend his formative years in Australia, this consideration applies to an extent to the Applicant who arrived as a young adult and has lived here most of his adult life. The Tribunal finds the community would afford him some limited additional tolerance for his offending behaviour consistent with the Direction. However, the repeated nature of his offending and his inability to restrain his behaviour in response to rehabilitation avenues offered to him in the past will have diminished that tolerance.
Overall, the Tribunal finds that the primary consideration in paragraph 8.5 of Direction no. 110, being the expectations of the Australian community, weighs moderately against revocation in the Applicant’s circumstances.
OTHER CONSIDERATIONS
Legal consequences of the decision
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[121]
[121] Direction no. 110 para 9.1.
While this consideration in Direction no. 110 refers to non-refoulment obligations, it also refers to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[122]
·Refusal of other visa applications and cancellation of other visas;[123]
·A prohibition on applying for other visas;[124] and
·Periods of exclusion.[125]
[122] Migration Act ss 189, 196, 197C, 198.
[123] Migration Act s 501F.
[124] Migration Act s 501E.
[125] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[126] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.
[126] Migration Act s 15.
In the Applicant’s case, the only basis upon which the immediate obligation to remove him from Australia if his visa remains cancelled would be stayed is if the Applicant applied for a protection visa.[127] Further, Australia’s non-refoulement obligations are technically irrelevant to removal and the duty to remove as soon as reasonably practicable arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.[128]
[127] Migration Act s 198(5A).
[128] Migration Act, ss 197C(1)-(2).
Nevertheless, the obligation to remove an unlawful non-citizen under s 198 does not arise if a ‘protection finding’ has been made in respect of a finally determined protection visa application.[129]
[129] Migration Act, s 197C(3).
In M1/2021,[130] the High Court considered the following question:
In deciding whether there was another reason to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth), was the Delegate required to consider the plaintiff’s representations made in response to the invitation issued to him pursuant to s 501CA(3)(b) of the Migration Act, which raised a potential breach of Australia’s international non-refoulement obligations, where the plaintiff remained free to apply for a protection visa under the Migration Act?
[130] [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)).
The High Court found that in deciding whether there was ‘another reason’ to revoke the Cancellation Decision pursuant to s 501CA(4)(b)(ii) of the Migration Act, where the plaintiff remained free to apply for a protection visa under the Migration Act:[131]
(1)the Delegate was required to read, identify, understand and evaluate the plaintiff's representations made in response to the invitation issued to him under s 501CA(3)(b) that raised a potential breach of Australia's international non‑refoulement obligations;
(2) Australia's international non‑refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and
(3) to the extent Australia's international non‑refoulement obligations are given effect in the Migration Act, one available outcome for the Delegate was to defer assessment of whether the plaintiff was owed those non-refoulement obligations on the basis that it was open to the plaintiff to apply for a protection visa under the Migration Act.
[131] M1/2021 at [9].
The Applicant has never held a protection visa and as such he would not be the subject of the bar found in s 48A of Migration Act on making an application for a protection visa should the visa cancellation not be revoked. This means that he would be able to make an application for a protection visa, where any claims for protection would be considered in detail and where the Applicant would be afforded another opportunity to provide evidence in support of those claims. The Applicant indicated at the hearing he was aware he could apply for a protection visa if he was unsuccessful in the current application.

The Tribunal accepts that the representations made by the Applicant, while better deferred for proper consideration in a protection visa context, weigh in favour of revocation. This is because the Applicant faces the prospect of a significant period in detention while such a determination is made which would cause him further hardship. It is also because the country information raises significant issues to be resolved prior to his return and the Tribunal accepts there are reasonable prospects a decision-maker considering his claims in more detail and with full information would find a real risk or real chance of harm associated with his return. The Tribunal places weight on this factor in the Applicant’s favour.
Conclusion on legal consequences
On the evidence before it, the Tribunal is satisfied that an issue of non-refoulement obligations arises for consideration with respect to the Applicant’s return to the Myanmar if the cancellation is not revoked. However, given limitations in the evidence before it, the Tribunal considers that it is preferable to defer a determination of whether the Applicant meets the criteria for protection and thus whether a non-refoulment obligation would be breached by his return to Myanmar for consideration in the context of a protection visa application, should the Applicant choose to make such an application (which he testified he would).
However, the Tribunal accepts that the process of applying for a protection visa may take some time during which the Applicant is likely to remain detained and would suffer hardship. The Tribunal finds the consideration overall weighs strongly in favour of revocation in the Applicant’s circumstances.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. In doing so the Tribunal must take into account:[145]
·the Applicant’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to the Applicant in their country.
[145] Direction no. 110 paras 9.2(1)(a), (b) and (c).
In summary, the Applicant submitted that if returned to Myanmar:
·he would be unable to pursue any meaningful course of rehabilitation for his drug use;
·would face the prospect of violence as a bystander or as a target of either military or revolutionary groups;
·and would have no access to any health services or religious support without exposing himself to considerable risk;
·there is no evidence that the Applicant’s education and experience are transferrable to Myanmar; and
·the Applicant faces a significant prospect of relapsing to drug use if returned, given that Myanmar is the largest global producer of methylamphetamine and the protective factors and programs supporting the Applicant’s recovery to date would be absent.[146]
[146] ASFIC, and articles cited at [110].
The Applicant contended, and the Tribunal accepts that if the assessment of the Applicant’s claims for protection are deferred, those claims are still a relevant to assessing the impediments he would face if removed to Myanmar. It was submitted that, if he were returned to Myanmar, he would face considerable suspicion and would likely be arbitrarily detained, at least for a period. It was also submitted that the Applicant’s ongoing rehabilitation from methylamphetamine use would be hampered by several factors including that Myanmar is the world’s largest producer of methylamphetamine.[147]
[147] Department of Foreign Affairs and Trade Country Information Report: Myanmar dated 11 November 2022, [2.48] (DFAT Report).
The Applicant also contended that the health system in Myanmar is one of the worst in Asia, particularly with respect to the treatment of mental illnesses such as depression and anxiety and that there was no evidence that there is stable and reliable treatment available for the Applicant in Myanmar for his recovery from drug use.[148]
[148] DFAT Report, [2.11] – [2.15].
The Applicant submitted that since the civil war commenced in Myanmar the economic circumstances of the country have worsened including increased unemployment and an increase in the poverty rate from 2017 to mid-2022 from 24.8% to 48.2%. The poverty rate almost doubled.[149] The Applicant submitted that generalised violence in [redacted] and across Myanmar has spiked with 118 incidents involving improvised explosive devices and 34 that involved small arms in [redacted] in February 2022.[150]
[149] DFAT Report, [2.8] – [2.10].
[150] DFAT Report, [2.31] and [2.41].
It was submitted that the Applicant has not had any contact with any of his family members since 2018 or 2019 and that the extent to which they are able to provide support is unknown.[151] However at the hearing he indicated he was in email contact with them and that they were living in [redacted] in a home they moved to two or three years ago. He indicated they are aware of his offending and are disappointed and that he is ashamed to have disappointed them. He also acknowledged his family were financially well off in relative terms although his parents, who were doctors, are now retired. The Tribunal considers the Applicant’s account of his family’s financial position is consistent with his history and that of his brother of having travelled abroad to study and work in professional occupations and with his account of the family’s connections to military leadership over a long period. The Tribunal also considered the Applicant’s earlier assertion that he was not in contact with his parents was not consistent with evidence at the hearing and this raised some concerns about his account of his circumstances in Myanmar more generally and in particular the extent to which he would face impediments if returned there.
[151] IHMS Report dated 1 September 2023.
It was also contended that the Applicant attended church services while in custody and sought assistance through religious charities such as the Salvation Army when he was in the community, support which would not be available in Myanmar.[152] It was submitted that DFAT assesses that Christians in Myanmar face a moderate risk of official discrimination and moderate risk of violence based on their religion.[153] However, at the hearing the Applicant told the Tribunal he had not made up his mind about his religion and did not articulate any fear as being a Christian but rather as someone who did not practice as a Buddhist. For the reasons outlined above, the Tribunal is not satisfied the Applicant is at risk of harm on that basis and for the avoidance of doubt the Tribunal does not accept the Applicant is a Christian or that Christian faith or a lack of support from Christian support agencies in Myanmar would be an impediment if removed to that country. The Tribunal considers based on the evidence that the Applicant would have support from his parents who remain in Myanmar and whom on his evidence are well connected to the Myanmar miliary. He also has extended family in the country through whom he is connected to senior levels of the military establishment.
[152] Letter from Chaplaincy Bathurst Correctional Centre dated 19 October 2022; Reference of Nathan Gibson, Dooralong Transformation Centre.
[153] DFAT Report, [3.38].
The Minister contended that the Applicant will be able to establish himself and maintain basic living standards in Myanmar.[154] The Minister contends that the Applicant left Myanmar as an adult and that there are no substantial language or cultural barriers if removed.[155] The Minister accepted that the Applicant may face practical, financial and emotional hardship on return to Myanmar due to the military rule. However, in the absence of a protection finding, the Minister contends that the extent of that hardship is not known.[156]
[154] Direction no. 110 para 9.2(1).
[155] Direction no. 110 para 9.2(1)(b) and (c).
[156] RSFIC.
The Applicant is 48 years old and claims to require ongoing rehabilitation from methylamphetamine and treatment for sleep apnoea. He is also undertaking counselling for mental health issues.[157] He has family members in Myanmar whom he claims are financially comfortable and who have longstanding connections with the military leadership. He is not a practicing Buddhist and does not practice any other religion.
[157] Direction no. 110 para 9.2(1)(a).
The country information on Myanmar supports the submission that the country is in a state of ongoing civil unrest and economic hardship.[158] The Tribunal accepts this will impact the Applicant on return notwithstanding the evidence suggests his family circumstances are more financially secure than most. While the Tribunal does not accept that the Applicant would not have access to medical care in Myanmar, noting his parents are retired doctors who it can be inferred would be able to assist in navigating access to medical treatment and who the Applicant concedes have financial means, the Tribunal does accept access to mental health and addiction supports may be limited.
[158] A1, pages 64-70 and the DFAT Report.
While the Applicant contends he will not return to illicit drug use, the Tribunal accepts there is a risk he will do so either in Australia or in Myanmar. However, there was no evidence to support the claim drugs are more readily available in Myanmar notwithstanding the country’s role in the production of drugs for the international drug trade. The Tribunal considers the risk of the Applicant relapsing if returned to Myanmar to be associated with the Applicant’s history of addiction, rather than the accessibility of drugs. The Tribunal accepts the Applicant’s history of drug dependency may make it more difficult for the Applicant to establish himself in Myanmar without relapsing and that this is an impediment if removed. However, given the Applicant’s self-professed commitment to sobriety and the supports he has had on progressing his rehabilitation, the Tribunal does not consider that an impediment to be insurmountable.
On balance and considering all the Applicant’s circumstances and country information regarding the situation in Myanmar, the Tribunal fins this consideration weighs in favour of revocation and carries moderate weight in the Applicant’s circumstances.
Impact on Australian business interest
Paragraph 9.3 of Direction no. 110 provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. Direction no. 110 notes that an employment link would generally only be given weight where it would significantly compromise the delivery of a major project, or delivery of an important service in Australia. However, the Tribunal considers that decision-makers are not precluded from giving weight to impacts on business interests in other circumstances.[159]
[159] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [69]–[70] per Rangiah J. While this decision related to an application decided applying an earlier Ministerial direction, the principle applies equally to Direction no. 110.
The Applicant contended that he has demonstrated through his employment history and previous contribution to Australian society that he is capable of contributing in his chosen field of architecture. Further, he was able to apply his knowledge and skills to a trade after his first period in custody, where his employer described him as a ‘punctual, courteous, and very skilled at his work’.[160]
[160] ASFIC; R1, G36, page 191.
The Applicant accepted that refusing to revoke the cancellation decision would not compromise the delivery of a major project in Australia, however he contended that it may compromise the delivery of building services to the community in circumstances where there is a significant shortage of supply of homes and units.[161] The Applicant submitted that ‘whether as an architect or a tradesman, the Applicant has shown that he has the education, knowledge, and experience to make a valuable contribution to an industry in need of support.’[162]
[161] Nick Dole, 'Higher towers, smaller homes, fewer car spaces recommended to solve NSW housing crisis', ABC News (online, 11 September 2024) < ASFIC.
The Minister accepted that this factor weighed in favour of revocation but should be given minimal weight. The Minister contended that the Applicant’s plans to re-engage in the workforce were speculative and that there is no clear evidence that his removal would affect any Australian business interest.[163]
[163] RSFIC citing Verril v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 802 at [19] per Thawley J.
Considering the evidence and circumstances, the Tribunal does not accept that the decision would impact Australian business interests in such a way as would carry any significant weight in favour of revocation. While the Tribunal accepts the Applicant’s desire to rejoin the professional workforce as an architect this is work, he has not engaged in for some time and which he was forced to leave in the context of illicit substance abuse. His capacity to rejoin the workforce in a productive way is contingent on him maintaining his commitment to sobriety and to not reoffending. As noted above, the Tribunal considers there are some challenges for the Applicant in that regard and there is a risk he will relapse into drug use and a moderate risk he will reoffend. As such the Tribunal accepts the submission that his capacity to contribute to Australian business interests is speculative.
Acknowledging the Applicant’s professional training and prior experience in Australia, the Tribunal considers this consideration weighs on favour of revocation. However, the Tribunal considers the consideration only carries minimal weight in the Applicant’s circumstances.
CONCLUSION
The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether it is ultimately satisfied that there is ‘another reason’ why the mandatory cancellation decision should be revoked.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has gone on to compare and balance all of the considerations to determine whether there is another reason the cancellation should be revoked.[164]
[164] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed. Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community which weighs moderately against revocation in the Applicant’s circumstances. The strength, nature and duration of the Applicant’s ties to Australia carries moderate weight in favour of revocation. The expectations of the Australian community would be that the visa would remain cancelled and this consideration weighs moderately against revocation in the Applicant’s case. The best interests of minor children and family violence do not arise on the evidence before the Tribunal.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision weighs strongly in favour of revocation and the extent of impediments if removed weighs moderately in favour of revocation in the Applicant’s case. The impact on Australian business interests weighs slightly in favour of revocation and carries minimal weight.
Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
The considerations in the Applicant’s case are finely balanced. He has repeatedly offended and ignored clear warnings of the impact further offending would have on his visa status. He has demonstrated a disregard for Australian laws. However, he did so predominantly in the context of addiction and the Tribunal accepts is on a pathway to remission. Further, there are significant challenges associated with his return to Myanmar in the foreseeable future and he faces ongoing detention while issues associated with his potential return can be resolved.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community, are outweighed by those weighing in favour of revocation, being the primary considerations of the strength, nature and duration of ties to Australia and the other considerations of the legal consequences of the decision, the extent of impediments if removed and to a lesser extent, the impact on Australian business interests.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, the Tribunal is satisfied that there is ‘another reason’ why the cancellation decision should be revoked.
DECISION
The decision of the delegate of the Respondent dated 20 September 2024, not to revoke the cancellation of the Applicant’s Resident Return (Class BB) (subclass 155) visa, is set aside and substituted with a decision that the cancellation of the visa is revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

205. I certify that the two hundred and four (204) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Burford

..............[SGD]..........................................
Associate
Dated: 24 December 2024

Date of hearing: 21 and 22 November 2024

Counsel for the Applicant: Mr R McCaw

Solicitors for the Applicant: Ms S Bennett, Legal Aid NSW

Counsel for the Respondent Mr T Lettenmaier

Solicitors for the Respondent: Ms L Taylor, Minter Ellison

ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 19 December 2023[165].
[165] R1, G6, pages 42-50.

Conviction Date	Court	Offence	Court Result
1.	14 Jan 2004	[Redacted]	Drive on road while licence suspended	Fine $300; 12 months disqualification
2.	21 March 2018	[Redacted]	Possess prohibited drug	Fine $500
3.	27 April 2018	[Redacted]	Use class A vehicle displaying misleading number plate	Fine $1,000
4.	20 August 2018	[Redacted]	Goods in personal custody suspected being stolen	Fine $600
5.	8 November 2018	[Redacted]	Agg B&E dwelling in company steal (10 counts)	Imprisonment 18 Months (aggregate) (Suspended)
6.	8 November 2018	[Redacted]	Agg B&E dwelling in company intent	Imprisonment 18 Months (aggregate) (Suspended)
7.	8 November 2018	[Redacted]	Fail to appear in accordance with bail acknowledgment (3 counts)	Imprisonment 18 Months (aggregate) (Suspended)
8.	8 November 2018	[Redacted]	Larceny Value <=2000	Imprisonment 18 Months (aggregate) (Suspended)
9.	8 November 2018	[Redacted]	Driver not disclose identity of driver/ passenger as required	Imprisonment 18 Months (aggregate) (Suspended)
10.	2 December 2019	[Redacted]	Drive vehicle, illicit drug present in blood	Fine $300 (Suspended)
11.	2 December 2019	[Redacted]	Goods in personal custody suspected being stolen	Imprisonment 2 Months (Suspended)
12.	*[166]14 February 2020	[Redacted]	Drive vehicle, illicit drug present in blood	Fine $300
13.	*14 February 2020	[Redacted]	Goods in personal custody suspected being stolen	Imprisonment 18 Months (aggregate)
14.	*14 February 2020	[Redacted]	Agg B&E dwelling etc in company steal (10 counts)	Imprisonment 18 Months (aggregate)
15.	*14 February 2020	[Redacted]	Agg B&E dwelling etc in company intent	Imprisonment 18 Months (aggregate)
16.	*14 February 2020	[Redacted]	Fail to appear in accordance with bail acknowledgment (3 counts)	Imprisonment 18 Months (aggregate)
17.	*14 February 2020	[Redacted]	Larceny value	Imprisonment 18 Months (aggregate)
18.	*14 February 2020	[Redacted]	Driver not disclose identity of driver/ passenger as required	Imprisonment 18 Months (aggregate)
19.	26 February 2021	[Redacted]	Participate criminal group contribute criminal activity	Community Correction Order 12 Months
20.	22 September 2021	[Redacted]	Drive vehicle, illicit drug present in blood	Fine $1,500; disqualification 1 months
21.	22 September 2021	[Redacted]	Drive while licence application refused	Fine $1,500; disqualification 1 months
22.	3 February 2022	[Redacted]	Drive motor vehicle during disqualification period	Imprisonment 4 Months; disqualification 12 months
23.	3 February 2022	[Redacted]	Drive while licence application refused	Imprisonment 3 Months; disqualification 12 months
24.	3 February 2022	[Redacted]	Goods in personal custody suspected being stolen	Imprisonment 3 Months
25.	10 November 2022	[Redacted]	Not comply with noticed direction COVID-19	Conviction with no other penalty
26.	10 November 2022	[Redacted]	Possess drug manufacture apparatus make prohibited drug	Imprisonment 18 Months (aggregate)
27.	10 November 2022	[Redacted]	Drive motor vehicle during disqualification period	Imprisonment 18 Months (aggregate)
28.	10 November 2022	[Redacted]	Use unregistered registrable Class C motor vehicle on road	Conviction with no other penalty
29.	10 November 2022	[Redacted]	Possess prohibited drug	Fine $400
30.	10 November 2022	[Redacted]	Goods suspected stolen in/on premises	Fine $500

[166] The Applicant’s sentence he received for the offences of which he was convicted of in the [Redacted] on 8 November 2018 was suspended on condition the Applicant partake in a court supervised drug rehabilitation program. The Applicant failed to complete the program and so was sentenced and the convictions subsequently finalised before the Court on 14 February 2020. Any offence asterisked is a finalised offence and not a separate offence.

Date of hearing:	21 and 22 November 2024
Counsel for the Applicant:	Mr R McCaw
Solicitors for the Applicant:	Ms S Bennett, Legal Aid NSW
Counsel for the Respondent	Mr T Lettenmaier
Solicitors for the Respondent:	Ms L Taylor, Minter Ellison