XTZM and Minister for Home Affairs (Migration)

XTZM and Minister for Home Affairs (Migration) [2019] AATA 2776 (6 March 2019)
Division: General Division
File Number(s): 2018/7585
Re: XTZM (pseudonym)
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:O’Loughlin(member)
Date:6 March 2019
Place:Adelaide

The Tribunal affirms the decision under review.
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Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Minister for Immigration and Multicultural Affairs V SRT(1999) 91 FCR 234; 56 ALD 349; [1999] FCA 1197
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION

This is an application by the applicant, (XTZM), seeking review of a decision made by a delegate of the Minister of Home Affairs not to revoke a decision to cancel XTZM’s visa. XTZM had his visa cancelled because of a range of offences largely resulting from his abuse of alcohol and other drugs, including methylamphetamine. The applicant has been given many opportunities to rehabilitate himself but is not able to convince the Tribunal that he has managed to do so.
On 22 May 2018, a delegate of the Minister for Home Affairs cancelled the applicant’s Class BA Subclass 200 Refugee visa. The cancellation of that visa was made under s501(3A) of the Migration Act 1958 (Cth) (the Act). The cancellation was mandatory under that provision because the applicant does not pass the character test and is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth.
The applicant, who was represented in the proceedings before the Tribunal, does not dispute that he does not pass the character test.
The applicant invoked s 501CA(4)(a) of the Act by making representations. It is not in dispute that the applicant validly sought revocation of the decision to cancel his visa.
On 11 December 2018, a delegate of the Minister for Home Affairs made a decision not to revoke the cancellation of the applicant’s visa. The delegate found that the applicant did not pass the character test and that there was no “other reason” pursuant to s501CA (4)(b)(ii) why the original decision should be revoked.
The applicant lodged an application for this Tribunal to review the decision of 11 December 2018.
The hearing of this matter was listed to take place on the 25^th and 26^th of February 2019 but did not proceed on the 25^th of February and was heard on the 26^th and the afternoon of the 27^th.
There was no other apparent irregularity with the hearing and no reason for the Tribunal to harbour concerns about the fairness of the hearing.
Further, in response to direct enquiry by the Tribunal, neither party complained of prejudice by reason of the adjustments to the hearing arrangements.
BACKGROUND
In making findings as to the applicant’s background the Tribunal generally relies on the oral evidence and in particular that of the applicant. The applicant gave evidence before the Tribunal under affirmation.
The applicant was born in Prijedor, in a part of the former Yugoslavia that is now Bosnia and Herzegovina, in 1984 and at the time of this decision is 34 years old.
His childhood was interrupted by war and upheaval and, after a period of detention in an internment camp, his family were forced to flee to Germany by way of Croatia when the applicant was about seven years old. They stayed there until the family were granted refugee visas and moved to Australia. That was in November 1999, about 5 weeks before the applicant turned 15.
By that time the family comprised the applicant, his parents, his two brothers, and a sister. Another sister was later born in Australia.
The applicant spent about six months studying English at a language school in Adelaide then went to high school where he stayed until 2002, part way through year 12.
The applicant told the Tribunal, and the Tribunal accepts, that he was subjected to bullying both at the language school and at high school. He said that the bullying was due to his ethnicity and his poor English.
After year 12 the applicant studied a computing course at TAFE for about a year.
At about this time his father opened a fish and chip shop which ran for a while with the help of the family including the applicant. The applicant’s father told the Tribunal that he hoped it would provide employment for the family.
He said that it traded for about a year to a year and a half.
The applicant said that the shop was opened when he was still at school and that it only lasted six to eight months.
In his written statement the applicant said that he dropped out of year 12 to work there but that there was not enough profit to generate an adequate wage and he left after three or four months full time work.
It is sufficient for the purposes of this decision to find that after he left school the applicant worked for a period in the family fish and chip shop and also did a TAFE course in computing.
The applicant’s evidence was that during his time working at the fish and chip shop he began drinking alcohol and quickly developed a dependency which ultimately led to crime and drug use which will be considered more fully later in this decision.
The applicant worked delivering pizzas and did some casual work in foundries and elsewhere until he was first imprisoned in November 2007.
After his release on parole in November 2008 he worked as a labourer for a building company and for a salvage yard.
The applicant’s wife gave evidence, which the Tribunal accepts, that she and the applicant had started a relationship in February 2000 when they were about 16. They were married in February 2010. Their first child, (applicant’s first child), was born in 2013 and their second child, (applicant’s second child), was born on the 30^th of September 2015.
Both the applicant and his wife, (applicant’s wife), gave evidence that generally the relationship was strong subject to occasional arguments but that in 2013 the applicant’s wife left the home. She said she was frustrated by the applicant continuing to take drugs despite having become a father. She viewed his drug taking as irresponsible.
She said that she wanted to show him that “things were different” because of the birth of their first child and that she gave him an “ultimatum”.
The applicant’s wife said that they were only separated for about six months but that although they lived together after that, the marital relationship did not resume immediately.
The exact dates of the suspension and resumption of the marital relationship are not important. The Tribunal notes that the applicant was taken into custody in late October 2013 and held until May 2014. The charges in respect of which the applicant was taken into custody on that occasion were not pursued.
Judge D, in her sentencing remarks in June 2017[1] (discussed further below) referred to the applicant as living with his “estranged wife” which is more or less consistent with the applicant’s evidence that he did not reconcile with his wife until immediately before he went to prison on the most recent occasion.
[1] “G” documents, Exhibit R1 pge. 30 at P 31 at about par. 17
The Tribunal finds that the applicant and his wife spent a period of about six months apart from late October 2013 to May 2014 and that they have generally lived together since then. However they did not see themselves as in a married relationship for much or possibly any of that time.
The Tribunal finds that between his release from custody in May 2014 until his most recent incarceration in June 2017, the applicant lived with his wife and children and provided them with financial support.
The conception of their second child, which was presumably in about January 2015, was described by the applicant as “one of those things” and by his wife as the result of a “drunken fling”.
The applicant gave evidence, which the Tribunal accepts, that after his release in May 2014 he started doing plastering as a subcontractor. He worked on three different sites and was still in work at the time of his sentence in June 2017.
He said that he was able to earn in the range of $70,000.00 to $110,000.00 per annum in that work.
In June 2017, the applicant was sentenced by a Judge of the District Court of South Australia in relation to an offence arising from an attempt to import a “tier 1 good” namely Safrole which can be used to make the drug called MDMA or “ecstasy”.
He entered a plea of guilty and was convicted. The conviction had the effect of breaching a bond to be of good behaviour into which the applicant had entered in November 2012.
The applicant was sentenced to imprisonment of two and half years with a non-parole period of 12 months in relation to the breached bond, and 15 months imprisonment on the attempt to import a tier 1 good. That sentence was subject to a direction that the applicant be released after 10 months on a recognisance release order in the sum of $1,000.00 to be on good behaviour for two years with a condition that he be under the supervision of a probation officer for the duration of the recognisance order.
The applicant is due to be released on parole in April 2019, such parole being subject to a number of conditions.
OTHER WITNESSES
The applicant called nine witnesses who gave support to the background information provided by the applicant and who gave their views as to the good character of the applicant. In most cases the evidence was augmented by a written statement of the witness prepared for the purposes of the hearing.
The applicant’s wife
The applicant’s wife gave evidence that she is still in a relationship with the applicant. She said that they became a couple when they were about 16 years old and that in that time they had not had many issues.
She said that there was one period just after the birth of their first daughter when she left as an “ultimatum”. She said that she wanted to show the applicant that with a child things were different and he needed to change his behaviour.
She said that he had always been present for the children and was a good dad. She said that he was a troubled teen and that there had been ups and downs but that after she left he went and got help and showed marked improvement.
She also said that he had started full time work and was doing well. She believed that he felt ashamed of his behaviour.
In relation to the children she said that he speaks to them every day and he speaks to her twice a day so that he can be involved in any decisions that have to be made.
The children, who are 5 and 3 years of age, have been told that he is working interstate to save them from the knowledge that he is in prison.
The applicant’s wife told the Tribunal that she was worried about the psychological effect on the children if their father had to return to Bosnia. She said that the elder child in particular had a strong bond with her father and would be greatly affected.
She also said that she worried that she would need to move without the applicant’s financial assistance and was dubious that the support she needed would come from either set of grandparents as they were getting old.
She expressed the view that, since the birth of the first child in 2013, the applicant had worked hard and taken all the right steps. She said she is confident that he would not re-offend as his children would hold him accountable.
Under cross-examination, the applicant’s wife told the Tribunal that she left the applicant when the elder child was four months old and that they resumed cohabitation after about six months. In fact, this period of separation appears to coincide with the time that the applicant was remanded in custody for charges which were not ultimately pursued.
She said that they did not actually reconcile until about six months before the applicant was sentenced in June 2017.
It was put to the applicant’s wife that in her written statement she had said that it was the birth of the first child that drove the applicant back to substance abuse and that the weight of fatherhood was too much for him.
She said that she viewed the drug taking as an ongoing problem.
She conceded that the applicant has a long history of offending but that there was no problem as long as he stayed off drugs. She believes that it was the need to fund his drug habit that drove him to offend.
She said that as far as she knows he used to drink but that it is no longer a problem. She said that his drinking effectively stopped when the drug taking started.
She gave evidence that she believes that she knows when he is taking drugs and that she believes that the last time he did so was just after the birth of the applicant’s second child in September 2015.
She did not know that he had been convicted of possessing an ice pipe in July 2016 nor that he had been ordered to attend a drug diversion program. When asked whether she thought there was still some work to do in relation to the applicants drug use, she agreed.
Finally, she told the Tribunal that she is of Bosnian background but that she would not go there to live nor would she take her children there even if the applicant returned there.
Generally the Tribunal accepts the evidence of the applicant’s wife. The suggestion that she left the applicant four months after the birth of her elder child to give him an “ultimatum” is dubious given that he was taken into custody at about that time although the Tribunal accepts that she probably gave an ultimatum of some sort.
The Tribunal accepts that the applicant returned to the home about six months later and stayed with his wife and daughters until he was again imprisoned in June 2017.
The Tribunal is not able to reconcile the evidence of the applicant, who says that he and the applicant’s wife view themselves as having reconciled just before the time of his current incarceration or perhaps since he has been imprisoned, with the evidence of his wife who says that they were reconciled six months before he was sentenced.
Although this difference in evidence is surprising the Tribunal accepts that reconciliation is often a process rather than a single event and its progress can be interpreted differently by the parties involved. The Tribunal does not draw an adverse inference as to the credit of either witness by reason of this difference.
The applicant’s brother-in-law
The applicant’s brother-in-law is the applicant’s is the applicant’s wife’s brother.
He told the Tribunal that he is 28 and has known the applicant since he was 10 years old. He said that he works as a chartered accountant.
The applicant’s brother-in-law said that he knows that the applicant had been in trouble but that he had observed that since the birth of his second child the applicant had changed.
He had observed that the applicant is very devoted to his children and that they seem to suffer from not having him available. He also said that his absence had been difficult for the applicant’s wife.
The applicant’s brother-in-law mentioned that the applicant had been a great support to his own father, who suffered from post-traumatic stress disorder and who had trouble with people. He described the applicant as his father’s only friend.
He said that he is aware of a rough patch in the applicant’s marriage at about the time of the birth of their first child but that the applicant had obtained stable work and his temperament had changed.
Under cross-examination the applicant’s brother-in-law agreed that he did not know about all of the offences that the applicant has been involved in but he said that he does know that there were issues with drug use and theft.
He could not say when he was last aware of the applicant taking drugs.
Mr L
Mr L is the proprietor of a painting and decorating company. He gave evidence that he has known the applicant for about 20 years and has worked with him, particularly at a construction company. He also gave the applicant some work in his crash repair business after the construction company failed.
He said that he had heard that the applicant had been in trouble but that he regarded him well as a worker and would be happy to employ him on his release from prison, first doing sanding and cleaning but he was confident that the applicant would move to painting within a couple of months.
When pressed under cross examination about the applicant’s criminal history he said that he had heard that the applicant had been stealing.
The applicant’s mother
The applicant’s mother gave evidence using an interpreter in the Bosnian language.
She said that the family arrived in Australia in 1999.
She said she does not know much about the applicant’s offending. She was asked about aspects of the joint statement[2] that she and her husband, (the applicant’s father) had signed. It was established that the statement had been typed by her daughter in law, the applicant’s wife, who had taken the applicant’s mother’s dictation in the Bosnian language, typed the statement in English, then read it back to the applicant’s mother in Bosnian to check it.
[2] Exhibit A 7
The applicant’s mother said that she had been happy with the content of the statement and agreed with it. She added the caveat that she had had a stroke and suffers from some memory impairment.
She gave evidence that she had been aware that years ago the applicant had been involved in something illegal but that she had not been able to intervene as she was ill. She said that she is now better placed to support the applicant as she has more time. She also said that she thinks he has changed for the better, that he was serious about being a father to his two children, and that he was working.
Under cross-examination she said that he moved out of home at about 20 years old and she never knew about him drinking or taking drugs.
The Tribunal accepts the applicant’s evidence that he had a serious drinking problem from about 17 years of age and that after a few years that changed to a significant drug problem which dominated his life. In that context, although there was no apparent effort to mislead the Tribunal, the Tribunal views the applicant’s mother’s evidence as being of limited assistance.
The applicant’s father
The applicant’s father, also gave evidence with the assistance of a Bosnian interpreter. He said that he had signed the statement being exhibit A7 and said that he had had it read to him in Bosnian before he did so.
He said that after the family came to Australia he opened the fish and chip shop to try to create some opportunity for the family members and so that they could work together.
When asked about the applicant’s drinking he said he did not know about it until one day about seven or eight years ago when the police came to the house looking for the applicant. Under cross examination he clarified that he did know that the applicant drank during the time that they were running the fish and chip shop.
The witness said that the absence of his son in prison was a source of pain to him. He said that if the applicant is allowed to stay in Australia after being released on parole he will try to find him work and try to keep him on a straight path.
He said that the applicant’s behaviour has brought shame to the whole family and that every member has suffered. He believes that this will help motivate the applicant to avoid repeating his offending.
He said that he does not know much about the current situation in Bosnia although he said that his property has been taken and that if the applicant was returned there he would have no relatives or friends and that there would be nothing for him to make a life there.
The applicant’s first brother

The applicant’s brother is 24 years old and works in building demolition.
He said that he had always admired the applicant who had been a good older brother and who had helped him in many ways such as finding work.
He said that he had not generally been aware of the substance abuse or the criminality because the applicant had shielded him from it. He said he had never seen the applicant drunk or affected by drugs.
The Tribunal notes that the witness is 10 years younger than the applicant and may not have been aware of the indicators of intoxication but given the applicant’s evidence it is unlikely that the applicant was not regularly intoxicated in his presence.
The Tribunal views the applicant’s brother’s evidence as being of limited assistance in this regard.
The applicant’s second brother
The applicant’s second brother is 25 years old. He described his relationship with the applicant as being “very close”. He said that the applicant is his brother and his best mate.
He said that by the time he was 15 or 16 he understood a little about the applicant’s past trouble.
He said that he and the applicant had discussed drug use and that he had tried to encourage the applicant to stop.
He gave evidence that the applicant has showed that he wants to change since the birth of the girls.
The applicant’s second brother also said that he was certain that there would be work available for the applicant at the casino site.
He said that the applicant would have a better chance to try to fix his life if he can stay in Australia and that everything in Bosnia would be difficult and that the applicant would have no one to help him.
He said he believed that the applicant had already started the process of reform.
Under cross examination he said that he was not aware of criminal behaviour until the applicant’s first period of incarceration in 2007.
He said that sometimes the applicant would go away to consume drugs or alcohol and that he would go and find him. He believes that the applicant would go because he was embarrassed about his behaviour.
He did not know when the applicant started with drink and drugs. He believed that he had stopped drugs at about the time of the birth of his first daughter albeit with one relapse. He was not sure if the applicant had stopped drinking.
The applicant’s sister
The applicant’s sister works in sales at a jeweller.
She said that she had always been close to the applicant who is older than her. Having said that she said she did not know much about his past troubles. She said that she hoped to be able to offer him support in the form of regular contact and the opportunity to discuss his problems.
She also said that she suffers from lupus and that her lung function is deteriorating. She said that if the applicant is deported it will be a problem for her and would be upsetting for his children.
She also believed that her parents would be traumatised.
On cross-examination she said that she believes that the applicant’s drug problem is big. She understood his offending history to be characterised by speeding fines, theft and drug offences.
She did not know when he started using drugs but believed that he had stopped at about the time his second daughter was born in September 2015.
Ms H
Ms H is engaged to be married to the applicant’s brother in law. She said that she works in a mail room.
She said that she has known the applicant for nearly eight years and that before the birth of his first child he seemed to be slightly more erratic and less inclined to think about the long term.
She said that she and her fiancée would be available to offer financial support for the applicant if he needed it.
She claimed to have some training that enabled her to identify the effect of trauma on him. It was not suggested that she is an expert in psychology and the Tribunal accords this evidence no weight.
Under cross examination she said that she did not have any detail about the applicant’s criminal history although she understood that he had used drugs. She said that she had not observed it.
The Tribunal accepts that this witness strongly supports the revocation of the cancellation of the applicant’s visa but puts little weight on her evidence which largely comprised opinion unsupported by facts or expertise.
The applicant’s younger sister
Also admitted into evidence was a letter of support signed by the applicant’s younger sister.
The statement deposes the applicant’s younger sister’s views that the applicant’s deportation will be upsetting for him and for his family. She expresses hopes for his reform.
The Tribunal accepts the statement as evidence of those matters.
APPLICANT’S OFFENDING HISTORY AND WARNINGS
The applicant gave evidence that when he first came to Australia he was very angry. This anger was compounded by bullying at both the language centre and high school. He said that he was about 17 years old when he started drinking and that he was about 21 or 22 when he started using drugs.
The applicant said more than once in his evidence that his need for money to support his use of drugs and alcohol drove his offending. He also said that the effects of consuming alcohol and drugs impaired his decision making and made him more prone to offending behaviour.
Under cross examination he agreed that his first involvement with the criminal justice system was in April 2002 when the Youth Court dealt with him in relation to a charge of larceny. That offence was apparently committed on the 13^th of December 2001, five days before the applicant turned 17. He was not convicted but was placed on a 12 month obligation and ordered to pay court costs[3].
[3] Exhibit R 2, Supplementary G documents, p. 47.
It is also evident on the documents[4] that there were allegations of two other counts of larceny that were committed on the 19^th of September 2001 and which were dealt with not by conviction but by the applicant undertaking to provide written apologies and undertake counselling.
[4] Exhibit R 2, Supplementary G documents, p. 46.
The applicant was not able to give detailed information about his early criminal convictions. When it was put to him that he had been convicted of many offences he agreed but said that they were mainly driving offences.
It was put to him that his offending history started within about two years of him arriving in Australia, which he agreed was correct.
He also agreed that he was placed on a bond which he later breached.
It was put to him that the effect of part of his evidence had been that he fell into the wrong crowd due to drink and drugs. In response to that he said that when he first arrived in Australia and was still at the language centre, he had been in fights due to his family’s Muslim background. He said he had never been a practising Muslim but that he and some other boys with Muslim heritage were forced together to defend themselves.
He agreed that in June 2003 he was involved in a break in at the premises of a car audio retailer. He agreed that he entered a plea of guilty to charges of aggravated serious criminal trespass (non-residential) in December 2004 and was sentenced to 18 months imprisonment. He agreed that the sentence was suspended and he was placed on a bond.
He agreed that he was later convicted of stealing alcohol from a bottle shop which he volunteered was two days before the expiry of the bond in relation to the June 2003 offence. It was put to him that the theft of alcohol in fact occurred on 17 December 2004, two days after the bond had been imposed rather than two days before it expired.
He responded by saying that he was a bad alcoholic at that time.
The applicant had given evidence about a warning that he received in 2005 from the then Department of Immigration and Multicultural and Indigenous Affairs. That warning is not available to the Tribunal but it seems probable that the Minister was considering cancellation of the applicant’s visa by reason of the applicant’s sentence.
He said in his evidence that he did not understand the effect of the notice and that he did not really take it seriously. He then gave evidence that he was worried and scared by the notice and that he wrote in response but did not think about it after that.
In cross examination he conceded that he did understand that he was liable to be deported.
The documents available to the Tribunal show that the discretion to cancel the applicant’s visa at that time was not exercised[5].
[5] Ex R1 – G Documents p. 141.
It is convenient at this point to deal with a further warning that was given to the applicant on 29 April 2008. The warning was contained in a “Formal Counselling Letter” dated 29 April 2008 and sent to the applicant at M Prison[6].
[6] Ex R1 – G Documents p. 144.
The applicant said that he did not remember receiving that letter although he agreed that he must have as he had signed the acknowledgement of receipt on the 2^nd May 2008 and returned it. There is a clear warning in that letter that his visa may be considered for cancellation if he is convicted of further criminal offences or engages in other conduct that comes within the scope of S 506 of the Migration Act 1958.
The applicant was also questioned about a number of driving offences. He agreed that he was convicted of drink driving when his car hit a fence on Anzac Highway. He said that he was drunk but that he had gone to pick up his now wife. He said that he agreed that drink driving offences are serious.
He did not dispute that he was caught driving while he was disqualified from holding a driver’s licence.
He also agreed that he was convicted of driving without due care after his car crashed into a stobie pole in 2013. He explained that he had fallen asleep at the wheel.
When invited to comment on what was described by counsel as “a willingness to put others in danger” he said that he only drove under the influence of alcohol once and that he has since put alcohol behind him.
The applicant was asked in cross-examination about crimes of violence. The applicant agreed that he was convicted for offences arising from a fight outside a pool hall in February 2006.
He said that he was with friends and that they had been in a night club (described elsewhere as a pool hall). One of them was attacked and the group just defended themselves. The applicant said that they were greatly outnumbered.
He agreed when it was put to him that he assaulted a security guard and one of the patrons, chipping that person’s tooth. He also agreed that he ran at a group swinging his fists and punched a third person.
It was put to the applicant that he had been convicted of two counts of carrying an offensive weapon. He said that he recalled one count in which he was driving his father’s car and a fishing knife was found in the pocket behind the driver’s seat.
The applicant was asked about being caught with gloves and a foldaway boxcutter and with an offensive weapon, namely a metal hatchet, on 21 January 2011.
The applicant said that he did not recall any such incident. The Tribunal notes that there were convictions arising from an interaction between the applicant and police on that day[7]. The foldaway box-cutter and a metal hatchet are referred to in the sentencing remarks of A SM in November 2012, although it does not appear that the applicant was sentenced in relation to the metal hatchet.
[7] Ex. R 2 – Supplementary G Documents p. 211.
The applicant was also cross-examined about some offences that were committed on the 9th March 2005. He agreed that he and another person went to a car park and stole audio equipment to the value of about $700.00 from cars that were parked there. He was asked if he was under the influence of drugs or supporting a drug habit at that time. He said no but that he was drinking.
It was put to him that his criminal record from 2010 and 2011 suggested that he had started breaking into houses by then. He agreed and said that that he was regularly under the influence of methylamphetamine at that time.
He was also asked about convictions for causing damage to homes which he conceded was probably due to gaining entrance.
The applicant had given general evidence about his use of alcohol and drugs. He said that he started drinking at about 17 years of age and that he largely gave alcohol up when he was about 21 or 22 years old. He said that he started taking drugs instead and at times was a heavy user of methylamphetamine, consuming as much as $400.00 worth of the drug per day.
He said that when under the influence of methylamphetamine he did not care about anything other than obtaining the drug and that he could be very selfish.
The applicant said that he started using methylamphetamine in about 2005 and that he used it until 2013 with one period of about a year when he abstained and a couple of other times when he went off for a few months.
He told the Tribunal that he had been off methylamphetamine since mid-2013 and that there had been no relapses.
His evidence about that was that after the birth of his first daughter (April 2013) he resolved to avoid drugs and crime in order to provide a better life for her.
He was cross-examined about a report of possessing a pipe of the type used for the consumption of methylamphetamine. That offence was in July 2016, well after the applicant claims he had stopped using methylamphetamine.
In cross examination it was put to him that the pipe was in his pocket which is the allegation in the police notes. The applicant strongly denied that allegation and said that the pipe was in the car and he did not know that it was there.
The differences between the police notes and the applicant’s version could not be tested. The Tribunal finds that there was an ice pipe in the applicant’s car on 25^th July 2016 but ,makes no finding as to whether it was in the applicant’s pocket.
The applicant agreed that he was referred to a drug diversion program but that he did not attend. He offered no reason for that failure to attend.
The Tribunal finds that the applicant was generally frank about his past offending and convictions but that where his behaviour was not likely to be documented, he was prepared to misrepresent the facts to cast himself in a better light.
CUSTODIAL TERMS SERVED BY THE APPLICANT
The Tribunal notes that the applicant has been in prison, other than for short periods on remand, for the following periods;
(a)19^th November 2007, 12 months.
(b)Late October 2013 to May 2014 – remanded in custody in respect of charges that were not pursued.
(c)8 June 2017 to date, eligible for parole in April 2019.
The times spent in prison, particularly the two later periods, are relevant to the applicant’s claims of being involved with his family and his claims to have abstained from drugs.
Sentencing Remarks
The Tribunal has the benefit of sentencing remarks in relation to the following convictions:
(a)December 2004, per His Honour Judge R[8] in the District Court regarding the break in at the electronic goods retailer in June 2003 (convicted on a plea of guilty and sentenced to two years imprisonment with a non-parole period of 10 months, suspended);
(b)November 2007, per His Honour Judge R[9] in the District Court regarding the theft of audio equipment from cars in the Flinders University car park in 2005 and the breach of the bond in late 2004 (convicted on a plea of guilty, sentenced to two years with a one year non parole period in relation to the fresh offences and the revoked suspended sentence);
(c)November 2012 per A SM[10] in relation to multiple offences including serious criminal trespass in a place of residence committed over a period from about 2010 - October 2011. This appears to cover a range of offences in relation to the applicant’s efforts to sustain his drug habit. (convicted on pleas of guilty and sentenced to 4 years and 6 months with a non-parole period of two years and three months, suspended).
(d)June 2017, per Judge D[11] in relation to 2 counts of attempting to import a tier 1 good; namely Safrole, committed in April 2013 (convicted on pleas of guilty and sentenced to a reduced term of 2 ½ years with a non-parole period of 12 months on the breach of suspended sentence bond and to 15 months with a non-parole period of 10 months for the attempt offences).
[8] Exhibit R1, G documents, p 48.
[9] Exhibit R1, G documents, p 43.
[10] Exhibit R1, G documents, p 34.
[11] Exhibit R1, G documents p30.
The Tribunal is entitled to inform itself on any matter in such manner as it thinks appropriate[12]. The Tribunal is obliged to accept the essential factual findings made by the sentencing Judge in relation to the sentence for the offence that enlivens the revocation of the applicant’s visa[13].
[12] Administrative Appeals Tribunal Act 1975 S 33 (1)(c).
[13] Minister for Immigration and Multicultural Affairs V SRT(1999) 91 FCR 234; 56 ALD 349; [1999] FCA 1197 at 40 and following.
There is no reason that the same reasoning should not apply to sentencing remarks in relation to other offences.
The Tribunal therefore has regard to the sentencing remarks referred to above and accepts the essential findings of fact made on each occasion.
In relation to the sentencing remarks of Judge R in December 2004 the Tribunal notes that the applicant had a disrupted childhood[14], difficulties integrating into Australian society[15], that he had the benefit of a relationship with a lady who is a positive influence, that there had been difficulties with alcohol abuse and that there had been an assessment by a psychologist who, although he did not make any diagnosis, suggested treatment to aid the applicant’s rehabilitation and long term development[16].
[14] Ex. R1 G documents p. 49 par. 3.
[15] Ex. R1 G documents p. 49 par. 5.
[16] Ex. R1 G documents p. 50 par. 3
In relation to the other sentencing remarks from Judge R, being those in November 2007, he noted that the applicant had a disrupted childhood[17], difficulties integrating into Australian society[18], that he needed to help his mother who was ill[19], that he had made a significant effort to reduce his alcohol consumption[20], and that there were positive signs which provide optimism that the applicant is in the process of rehabilitation.
[17] Ex. R1 G documents p. 44 pars. 2 and 3.
[18] Ex. R1 G documents p. 44 par.4.
[19] Par. 9.
[20] P. 46 par. 3
In his sentencing remarks in November 2012, A SM accepted that the applicant had suffered greatly as a child and had a disrupted childhood[21], that it was submitted by the applicant’s counsel that his early offending was due to alcohol and that that addiction had given way to a methylamphetamine addiction which he had not been able to overcome until he participated in the Diversion Court programs[22], that there had been a diagnosis of Post-Traumatic Stress Disorder but that he had had beneficial psychiatric and other treatment for that and for his addiction[23]. His Honour found that there was “clear evidence before the court, rather than hope, that you have your mental health condition under control and that you are no longer addicted to methylamphetamine. The factors that led to you to offend in such a serious way have now been addressed.”[24]
[21] P 37 par 15
[22] P 37 pars 17 and 18
[23] P. 38 par 20.
[24] P 38 [23].
This assessment proved to be inaccurate.
His Honour said at paragraph 44 “If you are not able to sustain yourself drug free, alcohol free and free of PTSD conditions in the community, then unfortunately the court’s hands will be forced on the next occasion”.
Finally there are the sentencing remarks of Judge D in relation to the offences of April, 2013 about 6 months after the sentencing remarks made by A SM.
Judge D’s remarks were made mid 2017.
She noted at paragraph 5 that the applicant had attempted to import a prohibited substance that could yield MDMA of a value of between $560,000 and $1.28 million.
Judge D noted that the offending was not isolated and that over the period of 3 ½ months following the offences the applicant had purchased other chemicals and substances which can be used in the production of drugs[25].
[25] R1 P 30 [6].

She noted at paragraphs 5 and 6 of the second page of her remarks that the applicant had been convicted of drug offences that occurred in August 2013 and later.
At paragraph 13 she says that the applicant’s methylamphetamine use increased after his wife left in 2013 and at paragraph 16 she says that it was the period in custody from October 2013 to May 2014 that was a catalyst for the applicant abstaining from drugs.
Judge D said that she had the benefit of a report from a psychologist, Dr M who had been treating the applicant. She quotes Dr M as saying that the applicant is suffering from post-traumatic stress disorder and a major depressive disorder due to his traumatic childhood.
She quotes him as saying that he needed ongoing psychological intervention for at least the next 6 months.
The applicant gave evidence that he did not receive further psychological intervention from Dr M. There is no evidence that he received it from anyone else.
There is no basis for the Tribunal to find that the applicant’s PTSD has been treated since he has been in prison.
There is no basis upon which the Tribunal can assess the impact, if any, of his incarceration on the applicant’s PTSD.
The Tribunal observes that the applicant’s undoubtedly traumatic childhood has been a factor of his offending since June 2003.
The Tribunal further notes that the applicant claims to have abstained from drugs since April 2013 although Judge D refers to two relapses since May 2014.
The Tribunal also notes that the applicant did not stop his methylamphetamine use on the birth of his first daughter as he said in his evidence. Judge D’s remarks suggest that he was still using methylamphetamine over 6 months later when he was incarcerated.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act to revoke the mandatory cancellation of the applicant’s visa should be exercised by the Tribunal. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; and
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.
The Applicant quite properly concedes that he does not pass the character test. The Tribunal so finds. Consequently the applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
“Another Reason” why the Decision to Cancel the Applicant’s Visa Should Be Revoked
Section 499(1) of the Migration Act relevantly provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
Section 499(2A) compels the Tribunal to comply with such a direction.
In this case, Ministerial Direction No 79 is such a direction and applies from 28 February 2019. It revokes Direction No 65. There is a large degree of substantial similarity between Ministerial Direction 79 and the former Ministerial Direction 65 and much of the consideration of Ministerial Direction 65 is directly pertinent to Ministerial Direction 79.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out principles that, according to the preamble at paragraph 5, “provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA.”
Those principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7 of the direction provides directions in exercising the discretion and states;
How to exercise the discretion
Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non citizen's visa will be revoked.
Paragraph 7 (1) b) therefore directs the Tribunal in this matter to take into account the considerations in Part C of the direction because this decision relates to the revocation of the mandatory cancellation of a non-citizen’s visa.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to … revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
Primary Consideration a) - Protection of the Australian community from criminal or other serious conduct.
Paragraph 13.1 of the provides matters that the Tribunal should consider:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)…
(c)…
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …
(i)…
The Tribunal observes that there is one conviction for an offence involving violence in the applicant’s history being an the assault outside the pool hall. Although violent offending of this type has not otherwise been a feature of the applicant’s history this must be viewed as a serious offence.
As regards the various sentences that have been imposed on the applicant the Tribunal observes that he has had sentences of imprisonment imposed on seven occasions since 30 April 2003.
Some of those sentences of imprisonment were relatively short, as little as 14 days, and the applicant enjoyed the benefits of having his sentence suspended on about 5 of those occasions but on two occasions he was sentenced to custodial terms in excess of 12 months and on each of those occasions he was in breach of a bond in relation to a previous suspended sentence.
The Tribunal has regard to the general principle that a sentence of a term of imprisonment is a “last resort” for sentencing courts and is generally only imposed in serious cases. The Tribunal finds that the offending for which the applicant was sentenced to a term of imprisonment should be regarded as “serious” for the purposes of the Tribunal’s consideration.
For the sake of completeness the Tribunal observes that this consideration is “subject to subparagraph (b)” which relates to crimes of a violent nature against women and children and does not apply in this matter.
In relation to the frequency of the applicant’s offending and whether there is a trend of increasing seriousness, the Tribunal observes that the applicant was convicted of over 60 offences between April 2003, his first conviction for offences committed as an adult, and June 2017 when he started the current period of imprisonment.
The Tribunal characterises this as frequent and finds that it tends to support a finding that the nature and seriousness of the applicant’s conduct to date is such as to weigh against revocation of the cancellation of the applicant’s visa.
Similarly the cumulative effect of the applicant’s repeat offending tends to support a finding that the nature and seriousness of the applicant’s conduct to date is such as to weigh against revocation of the cancellation of the applicant’s visa.
The Tribunal finds that the applicant has had two warnings about the potential consequences of his criminal conduct in terms of his migration status. In 2005 and 2008 he was formally warned in writing and it does not appear that either warning had any effect on his pattern of offending.
The applicant conceded in cross-examination that he effectively ignored the warning of 2005 and said that, although he acknowledged that he must have received the warning of 2008, he did not remember it at all.
The Tribunal finds that the applicant’s lack of reaction to the warnings tends to support a finding that the nature and seriousness of the applicant’s conduct to date is such as to weigh against revocation of the cancellation of the applicant’s visa.
Paragraph 13.1.2 of the direction directs the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In assessing this risk the Tribunal is directed, at paragraph 13.1.2 (1) to 2 considerations.
The first is the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
The second is the likelihood of the non-citizen engaging in further relevant conduct, in assessing which likelihood the Tribunal should take into account available information in this regard.
In relation to the nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct the Tribunal notes that the criminal conduct in which the applicant has engaged has involved a range of driving offences and further offences of driving whilst disqualified, breaking into houses and commercial premises and stealing goods, and a range of drug offences including the 2013 offence of attempting to import Safrole that the applicant should have known would have been used to produce MDMA and further that the street value of that drug would have been between about $500,000.00 and $1.2 million.
The thefts and the drug offences clearly represent a relevant risk of harm to individuals and to the Australian community and this consideration weighs against the cancellation of the revocation of the applicant’s visa.
The second consideration under 13.1.2 (1) a. is the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen.
This is undoubtedly a challenging consideration in this matter.
The applicant strongly submits that his offending, and certainly his serious offending, was committed while he was addicted to and using methylamphetamine, which he says was between about 2005 and April 2013 with about a year and some further periods of a few months each during which he abstained.
The Tribunal finds that the applicant has tailored his evidence in this regard to suit this application and that his use of the drug continued until late October 2013 and thereafter.
Further the applicant told the Tribunal that he was prompted by the birth of his daughter to stop using drugs and that he had not relapsed since.
The Tribunal accepts that the birth of his daughter may have been a contributing factor to his efforts to give up but notes the sentencing remarks of Judge D and finds that it was the time in custody from October 2013 that provided the “catalyst” for the applicant’s rehabilitation.
The Tribunal further finds that the applicant has suffered from 2 relapses which is inconsistent with his evidence.
The Tribunal notes that the applicant was convicted for possession of an ice pipe as recently as July 2016. The applicant insists that he did not know that the item was in the car and denies the police note that it was in his pocket. The Tribunal does not have enough evidence before it to determine which of these versions is true but accepts the respondent’s submission that it does not seem consistent with a clean break from drug use.
In considering the likelihood of the applicant engaging in further criminal conduct the Tribunal notes that there are some similarities in the matters submitted in support of this application and in matters that have been taken into consideration by sentencing courts.
In particular the question of the applicant’s undoubtedly traumatic childhood and flight to safety aged about 7.
This has been cited in all of the sentencing remarks available to the Tribunal.
The Tribunal does not doubt that the applicant’s childhood trauma had a role to play in his later offending.
Judge R, in the third paragraph of page 3 of his sentencing remarks inDecember 2004, notes that Mr GJI, psychologist, assessed the applicant and did not specify any mental health problems though he proposed treatment or counselling for his rehabilitation and long term development.
In 2012, A SM first referred to Post Traumatic Stress Disorder. No mention is made of who diagnosed this condition although it appears to have been as part of an assessment for a Diversion Program. This is the first mention of this condition in the material that has been brought to the attention of the Tribunal.
In her sentencing remarks in June 2017 Judge D refers to the diagnosis of Post -Traumatic Stress Disorder made by Dr M in a report of 23 April 2017.
He apparently suggested that incarceration would have a detrimental effect on the applicant’s rehabilitation. He also said that the applicant needed ongoing psychological intervention for at least the following six months.
The applicant gave evidence that he has not seen Dr M since he was imprisoned. He has had counselling of some sort but there is nothing before the Tribunal to suggest that he has had the type of psychological help contemplated by Dr. M.
The Tribunal is concerned that the applicant’s Post-Traumatic Stress Disorder has not had effective treatment and there is nothing to suggest that it has resolved.
That being the case the Tribunal cannot be confident that the applicant is not likely to engage in further criminal conduct given that the disorder has apparently been a contributing factor to much of his offending in the past, and in particular, to his most serious offending.
The applicant asks the Tribunal to take into account the substantial decrease in serious offending since April 2013. The Tribunal has found that his methylamphetamine use, which prompted some of his criminal behaviour, in fact continued until October 2013 at which time he was incarcerated until May 2014.
Since then there does appear to have been some improvement in the applicant’s behaviour although the Tribunal does not accept his evidence that he has avoided all drug use since then.
Judge D refers to two relapses since May 2014 and the respondent points to the conviction for possession of an ice pipe.
The Tribunal holds reservations about the likelihood of the applicant reverting to drug use if put in a stressful situation. On balance his factor weighs heavily against the revocation of the cancellation of the applicant’s visa.
Primary Consideration b) -The best interests of minor children in Australia
Paragraph 13.2 of the direction sets out the next primary consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The respondent has, quite rightly, conceded that this factor should be assigned significant weight in favour of the revocation of the cancellation of the applicant’s visa.
There are two relevant children, the applicant first child, aged 5 and the applicant’s second child aged 3.
Despite the fact that the applicant has been in prison for much of each child’s life there is evidence, which the Tribunal accepts, that the applicant involves himself in the children’s lives by speaking to them in daily telephone conversations and by co-ordinating with their mother in relation to many decisions, even small ones, about their care and wellbeing.
The children are young and the duration of the applicant’s likely parental role is long.
The applicant’s conduct is not identified as likely to have a negative impact on either child.
Presumably the applicant could stay in contact with the applicant by telephone or other means if he were to return to Bosnia although there is evidence that the older child has already had cause to be distressed by the applicant’s absence.
The applicant’s wife is fulfilling the bulk of the parental role but expresses her distress at shortcomings in her ability to do so and her reliance on the applicant.
The children’s views have not been provided but this is not at all significant given their youth.
There is a suggestion that the applicant felt so inadequate in the first months as a father that he reverted to drug use and either abandoned the family or caused them to leave. The Tribunal finds that this did not result in any harm to the first child and was a reaction that the applicant overcame.
There is no suggestion of any abuse or neglect of the second child and no evidence of any physical or emotional trauma to either child by reason of the applicant’s conduct.
The Tribunal finds that this primary consideration weighs heavily in favour of the revocation of the cancellation of the applicant’s visa.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the primary considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Further, paragraph 6.3(5) of the Direction provides:
Australia has a low tolerance of any criminal or other series conduct by people who have been participating in, and contributing to, the Australian community for only a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The respondent referred to the often cited authority of Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458 at [7] at which Deputy President Block said that he expectations of the Australian community:
... “should be considered through the lens of a middle-of-the-road reasonable member of the Australian community who does not hold extreme views one way or the other on immigration matters and who has full knowledge of the evidence before the Tribunal”.
In the matter of YNQY v Minister for Immigration and Border Protection[26], Mortimer J said:
“The Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction”.
[26] [2017] FCA 1466.
The tribunal finds that the nature and seriousness of the crimes of which the applicant has been convicted are such as to give rise to the “expectation” referred to by Mortimer J.
The Tribunal finds that this consideration weighs somewhat heavily against the application.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations, as set out in paragraph 14 of the Direction, include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on victims; and
(d)Extent of impediments if removed.
As regards international non-refoulement obligations, the applicant ultimately agreed that this matter does not arise. The Tribunal does not find that this is a relevant consideration and is not therefore obliged to take it into account.
The respondent accepts that the applicant has significant ties to Australia including the fact that he has lived here for nearly 20 years since he was 14 years old, and that his family and extended family live here.
This factor, however, is of limited weight in favour of the application given the early stage at which the applicant began offending after arriving in Australia and the absence of evidence about his contribution to the Australian community.
The bulk of the evidence from the other witnesses called by the applicant goes to this topic and the Tribunal accepts that a decision not to revoke the cancellation of the applicant’s family will cause emotional and practical hardship to his immediate and extended family.
The Tribunal accepts that, in addition to the support he could offer to his wife and children, he offers emotional and practical assistance to his ailing parents and could perform a mentoring role for his siblings.
This does suggest that the strength, nature, and duration of the applicant’s ties to Australia favour the revocation of the cancellation of his visa.
On balance the Tribunal finds that this consideration carries some weight in favour of this application.
Paragraph 14.5(1) of the Direction considers the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing himself, and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The applicant is relatively young and there is nothing to suggest that his physical health is other than good. This does not weigh in favour of the application.
The applicant gave evidence that he speaks Bosnian but does not read or write it. The Tribunal accepts that evidence but does not find that it weighs heavily in favour of the application.
There is no suggestion that the applicant will be denied medical support in Bosnia although the Tribunal accepts that the applicant does not have any existing contacts in the country through either family or friends. There is no evidence of economic support. This factor has some weight in favour of the application.
WEIGHING OF THE CONSIDERATIONS
Primary consideration A weighs heavily against granting the application.
Primary consideration B weighs heavily in favour of granting the application.
Primary consideration C weighs heavily against granting the application.
Of the Other Considerations, the strength, nature and duration of ties has some weight in favour of the application. The extent of impediments if removed also has some weight in favour of the application.
The Tribunal finds that the balance of weighting of the various considerations does not favour the revocation of the cancellation of the applicant’s visa.
Decision
For the reasons set out above the Tribunal affirms the decision under review.

272. I certify that the preceding 271 (two hundred and seventy one) paragraphs are a true copy of the reasons for the decision herein of Member O’Loughlin

......................[sgnd]..........................
Associate
Dated: 6 March 2019

Date of hearing: 26 February 2019, 27 February 2019

Advocate for the Applicant: Mr H Smart

Advocate for the Respondent: Ms. C Stokes Australian Government Solicitor

[2019] AATA 2776

6 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Jurisdiction

Date of hearing:	26 February 2019, 27 February 2019
Advocate for the Applicant:	Mr H Smart
Advocate for the Respondent:	Ms. C Stokes Australian Government Solicitor