XTZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 2153

XTZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2153 (7 July 2020)

Division:GENERAL DIVISION

File Number(s):      2018/7585

Re:XTZM

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member B J Illingworth

Date:7 July 2020

Place:Adelaide

The Tribunal sets aside the decision under review. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class BA Subclass 200 Refugee visa be revoked.

..............................[Sgnd].................................

Senior Member B J Illingworth

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 set aside and substituted.

LEGISLATION

Migration Act 1958 (Cth)

CASES

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

FYBR v Minister for Home Affairs [2019] FCAFC 185

Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

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

Senior Member B J Illingworth

7 July 2020

INTRODUCTION

1. This matter relates to an application for review filed by XTZM (“the Applicant”) on 20 December 2018 for a review of the decision by a delegate of the Minister for Home Affairs, now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”), dated 11 December 2018, not to revoke a decision to cancel the Applicant’s Class BA Subclass 200 Refugee visa (“visa”) made under s 501(3A) of the Migration Act 1958 (“the Act”).

2. The application for review was remitted by the Federal Court of Australia by consent by Order of Charlesworth J dated 2 September 2019[1] and has now been heard by a differently constituted Tribunal. The documentary and oral evidence received at first instance was received by the Tribunal by consent and was supplemented by further evidence from the Applicant.

   [1] Exhibit B, Agreed Bundle (“AB”), 1179.

3. The Order was made by consent on the basis that the Tribunal committed a jurisdictional error by failing to take into account the issue of international non-refoulment obligations. In his supplementary Statement of Facts, Issues and Contentions (“SoFIC”), the Applicant also maintains that two separate errors occurred on the face of the Tribunal’s reasons, namely, that the Tribunal:

   (a)failed to consider the Applicant’s evidence about his contribution to the Australian community; and

   (b)failed to give real consideration to representations made by the Applicant in respect of the lack of support available to him in Bosnia and Herzegovina, which would cause him hardship if returned.

4. At the hearing, the Applicant appeared by video link from immigration detention and was represented by Ms Emily Rutherford of Camatta Lempens Lawyers. The Respondent was represented by Ms Chloe Hillary, Australian Government Solicitor.

   BACKGROUND

5. The Applicant was born in 1984 in Prijedor, a city in the former Yugoslavia that is now located in Republika Srpska, an entity of Bosnia and Herzegovina. He is a 35-year-old citizen of Bosnia and Herzegovina.

6. When the Applicant was approximately six years old, civil war broke out in Yugoslavia. He witnessed his uncle being murdered by Serbian Army officers. The Applicant, together with his mother, sister and aunt, were incarcerated in a concentration camp. He witnessed atrocities and had to steal food to survive. His father and other male relatives were in a separate concentration camp. After approximately six months living in the concentration camp, the Applicant and his family escaped to Croatia and then to Germany.

7. The Applicant attended school in Germany which was uneventful. He and his family lived in Germany until they were granted a visa and moved to Australia in November 1999, just prior to the Applicant’s fifteenth birthday. Upon arrival, he attended an English language school and then high school. The Applicant was bullied both at language school, particularly by Serbian boys, and at high school, due to his ethnicity and poor English skills. He constantly got into trouble at school for fighting and arguing. In 2002, the Applicant left school part way through year 12 and then attended TAFE where he studied computing for six months.

8. When aged 18 years, the Applicant went into business with his father in a fish and chip shop. That business ceased after six to eight months. It was hard work, long hours and not very successful.

9. The Applicant then obtained full time work as a process worker in a factory. He worked there on three different occasions, the last being in 2005. When aged 23 years, he obtained work for six months as a process worker at a tyre business, which employment ended when the business was sold. He then worked in various trades within the construction industry, including as a labourer and scaffolder. In 2013, he was a self-employed plasterboard contractor. Between 2014 and 2016, he was working on the new Royal Adelaide Hospital construction site as a self-employed plasterer and then at the University of South Australia. In 2016, the Applicant was in full-time employment as a sub-contractor working on a new hotel being built in the city until he was most recently imprisoned.

10. Whilst in prison, the Applicant has worked collecting rubbish and as a prison cook. He has completed various courses including the Making Changes program, Smart Recovery program and a TAFE course in business studies which involved learning computer skills. He has employment in the construction industry available to him should he be permitted to return to the community and intends to return to study to become a youth counsellor, helping young people with problems, including drug abuse.

    Offender History

11. The Applicant has an extensive history of criminal offending. His first offence of larceny was committed in December 2001 as a juvenile, approximately two years after arriving in Australia. He was dealt with in the Youth Court without conviction and placed on a bond which he breached by committing other driving and dishonesty offences.

12. The Applicant explained that racial vilification and difficulties he had at school caused him to fall into the wrong crowd. He said that he started drinking at around 17 years of age.

13. He was convicted of approximately 67 offences between 11 October 2002 and 8 June 2017. Between October 2002 and April 2003, he appeared in both the Children’s Court and Magistrates Court for driving offences including driving whilst disqualified.

14. On 15 December 2004, the Applicant appeared in the District Court jointly charged with three others, all of whom pleaded guilty to aggravated serious criminal trespass in a non-residential building and larceny. The offending occurred in the early hours of the morning of 26 June 2003, when the Applicant and his co-accused forced entry into a car audio store, causing property damage to the value of approximately $3,000 and stole property valued at about $1,347. They were seen by police leaving the premises and were apprehended. The Applicant was aged 19 years. The Learned Sentencing Judge outlined the Applicant’s tragic personal background in Europe and his difficulties upon arrival in Australia and integrating into society to which I referred above. His Honour also referred to the Applicant’s difficult relationship with his father. In evidence before the Tribunal, the Applicant detailed his relationship with his father which included violence. He said that he was a strict disciplinarian.

15. The Learned Sentencing Judge referred to the Applicant’s work history and that he was in a relationship with a lady who had a positive influence on his life, that lady later became his wife. His Honour noted difficulties with alcohol abuse and that a psychological report considered that psychotherapeutic treatment or counselling would benefit the Applicant’s rehabilitation. The Applicant was sentenced in respect of both offences to a term of imprisonment of 18 months with a non-parole period of 10 months suspended upon him entering into a bond to be of good behaviour for 15 months with conditions including undergoing alcohol and psychological counselling.

16. On 9 May 2005, the Department notified the Applicant that his visa may be liable to cancellation on character grounds. He was then approximately 20 years of age. The Applicant responded with written submissions dated 30 May 2005.[2] By letter dated 2 June 2005, the Applicant was advised that the delegate had decided not to exercise the discretion to cancel his visa but warned him that a fresh assessment will be made with a view to cancelling his visa if further offences are committed.[3] The Applicant recalled receiving that warning and was concerned about the possibility of deportation but continued to offend nonetheless.

    [2] AB, 143.

    [3] AB, 141-142.

17. On 9 November 2007, the Applicant was again before the same District Court Judge. He admitted breaching the bond entered into on 15 December 2004. He did so by:

    (a)on 17 December 2004, stealing a bottle of whiskey from a tavern; and

    (b)on 9 March 2005, committing the offences of illegal interference with a motor vehicle (two counts), theft (two counts), and unlawful possession. The offending was in the company of another and involved breaking into motor vehicles at a university car park and stealing sound systems and compact discs. They were stopped by police and an additional sound system was located in their car.

18. Once again, the Learned Sentencing Judge outlined the Applicant’s personal history but added that in 2006 the Applicant suffered a back condition requiring surgery and his mother, who had recently given birth to the Applicant’s youngest sister, suffered from ill health requiring the Applicant to provide his mother with support including helping with the care of his newborn sister.

19. Given the passage of time since the offending, the absence of further offending in the interim period, his efforts to rehabilitate himself, being currently employed, and having participated in an alcohol and drug rehabilitation program, the Applicant received a total head sentence of two years imprisonment with a non-parole period of twelve months. He also was disqualified from holding a driver’s licence for twelve months.

20. The Department wrote a formal counselling letter to the Applicant dated 29 April 2008.[4] The purpose of the letter was to again warn the Applicant that any further criminal convictions or other conduct which comes within the scope of s 501(6) of the Act could result in the consideration of the cancellation of his visa. The Applicant signed an acknowledgement of receipt of that letter dated 2 May 2008.[5] The Applicant could not now recall receiving this warning but did not dispute that he did so.

    [4] AB, 144-145.

    [5] AB, 149.

21. From 2008 to 2011, the Applicant appeared before Magistrates Court for approximately 14 offences, including:

    (a)drink driving;

    (b)multiple offences of failing to comply with bail agreement;

    (c)common assault;

    (d)carry offensive weapon; and

    (e)driving whilst disqualified.

22. On 5 November 2012, the Applicant appeared before the Magistrates Court to be sentenced for numerous offences, including:

    (a)possess prescription drug;

    (b)possess article to commit offence;

    (c)unlawful possession (two counts);

    (d)serious criminal trespassed in a place of residence (three counts);

    (e)dishonestly deal with property;

    (f)dishonestly take property without consent (eight counts);

    (g)unlawfully on premises, damage property;

    (h)false or misleading statement; and

    (i)a number of minor driving offences.

    The offences occurred in or about 2010 and 2011. The Learned Magistrate said that the offending was due to the Applicant’s addiction to methylamphetamine which arose after he was involved in a car accident two and a half years earlier. The offences were all committed to pay for drugs.

23. The Learned Magistrate said that the Applicant was unable to overcome his methylamphetamine addiction until he participated in a Drug Diversion Court program which also led to a diagnosis of post-traumatic stress disorder (“PTSD”).

24. The Learned Magistrate imposed one sentence for all the offending, namely a sentence of imprisonment of four years and six months with a non-parole period of two years and three months. The sentence was suspended upon the Applicant entering into a bond to be of good behaviour for three years.

25. In 2014 and 2015, the Applicant was dealt with in the Magistrates Court for drug, dishonesty and driving offences. He received several convictions and was also sentenced to two months imprisonment, suspended upon entering into a bond to be of good behaviour for 18 months. The Applicant said that he committed those offences much earlier in time before 2014, and during a period in his life when he was in the grips of his methylamphetamine addiction. That was not challenged by the Respondent.

26. On 17 January 2017, the Applicant was convicted for possessing equipment to be used with a controlled drug. That offence occurred on 25 July 2016. His vehicle was stopped by police and they found in his possession an Ice pipe used for smoking methylamphetamine. He was convicted and fined $30.

27. On 8 June 2017, the Applicant appeared for sentencing in the District Court and pleaded guilty to two counts of attempting to import Safrole, a prohibited substance, used as a precursor to manufacture methylamphetamine. The offences were committed on 6 and 7 April 2013. He attempted to purchase the substance via the internet from United States of America. He had also purchased other chemicals used in the production of illicit drugs for which he was not charged. The offences breached the suspended sentence bond dated 5 December 2012, to which I have referred to above.

28. It is not clear why the Applicant was being dealt with nearly four years after he committed the offences. The Learned Sentencing Judge, when considering the Applicant’s antecedent history, noted that those 2014 and 2015 convictions to which I have referred, were for offences committed in 2013.  Her Honour said that that motivation for committing the attempt import offences was that the Applicant was struggling to financially support his wife and newborn child, and that he was told he could make quick money by importing the substance via the internet for others and on-selling it for a significantly higher price.

29. Her Honour said in her sentencing remarks, that the Applicant was remanded in custody in late 2013 for alleged offences that did not proceed. He was released from custody in May 2014. He obtained employment. He consulted a psychologist who provided a report dated 23 April 2017 who, ‘expressed the opinion that you were suffering from post-traumatic stress disorder and major depression disorder as a result of your early traumatic childhood … if you were incarcerated this would have a detrimental effect’[6]  on the Applicant’s rehabilitation and that the Applicant needed ongoing psychological intervention for at least six months.

    [6] AB, 31-32. 

30. Her Honour also received a letter from the Applicant’s wife. Her Honour said in referencing that letter:[7]

    … that since your release from custody in 2014 you have taken many steps to change your behaviour and combat your drug addiction. She also said that you have re-established your relationship with your elder daughter and that your children are very attached to you. She referred to you as a great parent who is intimately involved in their lives. She said that should you be incarcerated, she and your children will struggle financially and emotionally.

    [7] AB, 31.

31. Her Honour said that he Applicant’s drug addiction was the underlying cause of his offending. Albeit Her Honour revoked the suspended sentence of four years and six months, as she was obliged to do,  she found special circumstances to justify reducing that sentence which included the rehabilitative steps he had taken in recent years, the ongoing progress made with the psychologist since the birth of his second child,  that he played a formative role in the lives of both children and that incarceration would have a detrimental impact on them. Accordingly, the sentence was reduced to a head sentence of two and a half years with a non-parole period of 12 months.

32. In considering the attempt importation offences Her Honour: [8]

    … acknowledged that you committed these offences during a particularly difficult time in your life when you were again addicted to methylamphetamine and struggling with your mental health and when you needed money to support your family.

    Her Honour sentenced the Applicant to 15 months imprisonment with a non-parole period of 10 months. The sentence was to be served cumulatively upon the completion of the 12-month non-parole period for the revoked suspended sentence. Her Honour was satisfied that the Applicant was genuine in expressing remorse for his offending.

    [8] AB, 32.

33. In evidence, the Applicant said he was using about three grams of methylamphetamine a day which was a $400 a day habit. He said that from the time of the birth of his first daughter in 2013 he made a determined effort to overcome his drug addiction and provide for his family. He sought the assistance of a psychologist, to whom the Learned Sentencing Judge referred, and who treated him for his PTSD and a depressive condition, a condition he had previously failed to acknowledge, and which was related to his drug addiction.

34. The Applicant said that since late 2013 he has not reoffended and remained free from drugs save for a brief relapse in 2016 when he was charged with possessing the glass pipe. Since being in custody and immigration detention he has always provided a clear urine sample.

35. The Applicant said that he and his wife separated after the birth of their first child. She had given him an ultimatum to prove that he had changed, ceased abusing alcohol, and abstained from taking drugs. The Applicant lived in the garage. In 2015, the Applicant and his wife conceived their second child who was born in September 2015 at a time when they were still separated. Throughout their separation the Applicant performed a parenting role for his two daughters. The Applicant and his wife formally reconciled in about 2016 and prior to being sentenced for his 2013 offending. The Applicant’s role as a father and husband was the driving force in addressing his psychological illness and drug abuse. That journey, he acknowledged, was not complete, but he was determined not to reoffend and abstain from drugs.

    Psychological Report of Dr Richard Balfour

36. A psychological report of Dr Richard Balfour dated 2 December 2019 was received into evidence.[9] Dr Balfour reported the Applicant’s personal history in detail, both in Yugoslavia and in Australia which was consistent with the Applicant’s evidence. He reported the Applicant’s father was then aged 69 years and was medically unfit to work suffering from PTSD and cardiac disease. Further, he had a gambling addiction and was a heavy drinker but did not use illicit drugs. Consistent with the Applicant’s evidence, it was reported that the Applicant’s father was violent following the civil war in Yugoslavia, and the Applicant would be beaten when he got into trouble. Nonetheless, the Applicant maintains frequent contact with his father, currently by telephone whilst in detention.

    [9] Exhibit A, Applicant’s Supplementary Materials (“ASM”), 16-47.

1. The Applicant’s mother was then aged 54 years and has suffered multiple heart-attacks, strokes and blood clots. She is wheelchair bound. The Applicant maintains regular contact with his mother by telephone and enjoys a close relationship with her.

2. The Applicant has two brothers and two sisters. He is the eldest child. The youngest is his sister who at the time of the report was 13 years of age. The Applicant enjoys a close relationship with his siblings.

3. Dr Balfour reported that the Applicant commenced psychological treatment in 2013 with a psychologist and was also reviewed by a psychiatrist. He completed a six or seven-week rehabilitation course as part of the Drug Diversion Court, has never been admitted as an inpatient in a psychiatric unit and has never been prescribed anti-depressant medication.

4. Dr Balfour reported that the Applicant impressed him as being frank and forthright and he believed he was genuine in answering questions. He had a history of alcoholism and his main drug of abuse was Ice. Dr Balfour opined:[10]

   He clearly has a history of trauma symptoms. I believe that his presentation and personal history are consistent with him having a complex Post-Traumatic Stress Disorder that has been exacerbated by alcoholism and illicit drug abuse.

   [10] ASM, 34.

5. He described the Applicant as suffering a very traumatic childhood being a war refugee. He described the difficulties he and his family suffered as Bosnian Muslims and refugees from the Yugoslav civil war in 1992. He also detailed, consistent with the Applicant, the difficulties and culture shock following the move from a German refugee camp to Australia and the issues he faced at school including persecution by local Serbians. Following his association with negative peers leading to abusing drugs and alcohol he said:[11]

   [The Applicant] then became entrapped in the cycle of mental health problems, self-medicating with illicit drugs and alcohol, socialising with negative peers, and offending to support his drug addiction.

   [11] ASM, 35.

6. Dr Balfour asked the Applicant why he kept offending having received formal warnings to which the Applicant replied:[12]

   I was under the very high influence of drugs and alcohol. And I really didn’t understand what was happening there; and I didn’t really pay much attention to it. I got one of them, but I can’t remember the other one [Letter]. At that time, I didn’t have kids. The influence of drugs was very high, and I just didn’t care. No, I wasn’t married at the time either. Everything has changed since then.

   [12] ASM, 36.

7. The Applicant also reported taking drugs, namely ecstasy and amphetamine, in prison. He also reported to Dr Balfour that:[13]

   After I had done all of my rehabilitation and getting all my life back on track the police came and I got charged with this. The court took so long to happen. By then I had basically got my life all on track; and I got basically sentenced to prison.

   [13] Ibid.

8. Dr Balfour reported that the Applicant appeared to be a model prisoner who had used every opportunity to rehabilitate himself while incarcerated. He opined that the Applicant had not been receiving optimal treatment for his complex mental health problems and, hence, he had continued to use illicit drugs to self-medicate resulting in further offending.

9. Dr Balfour opined that, ‘With the assistance of a supervised, structured rehabilitation program, I believe that [the Applicant’s] prognosis to cease offending is fair (i.e., on a prognosis rating scale of poor, fair, and good)’.[14] He gave several reasons for that prognosis which included:

   [14] ASM, 38.

   1.The Applicant’s Ice addiction was a maladaptive coping strategy for his undiagnosed PTSD, and he has not had specialist psychological treatment that has specifically targeted his PTSD. He requires specialist treatment by a clinical psychologist who specialises in eye movement desensitisation and reprocessing (“EMDR”),[15] being weekly hourly treatment for between three to six months. The success rate of EMDR is approximately 70 to 80 per cent. Effective treatment of PTSD will alleviate his trauma symptoms and he will no longer be vulnerable to self-medicating with illicit drugs. He would have developed coping strategies.

   [15] A form of psychotherapy designed to diminish negative feelings associated with memories of traumatic events.

   2.The effective treatment of PTSD will ameliorate a sufferer’s drug and alcohol problems. Dr Balfour believed the Applicant’s remorse was genuine and not self-serving.

   3.The Applicant is highly motivated to participate in rehabilitation for his addictions. He has completed the eight month Making Changes program; attended Alcoholics Anonymous once a week for a month; in 2010 he completed the Drug Diversion Court program albeit he subsequently relapsed; he completed the six-week Moral Recognition Therapy program. Dr Balfour wrote that the Applicant, ‘has done basically everything possible to overcome his drug and alcohol [addiction]. He has completed every program that is available to him in prison’.[16] The reason for his relapse was due to untreated PTSD and succumbing to negative peer pressure to offend and finance his drug addiction.[17]

   4.He has developed insight in respect of the need to avoid negative peers and to that end voluntarily had himself placed in protective custody in prison.

   5.He values his relationship with his wife and two daughters. His wife is very supportive. He has daily contact with her and his two daughters. He is highly motivated to remain both drug and offence free to enable him to work with and support his family.

   6.He suffers chronic pain in respect of two ruptured vertebrae in his neck and has never had optimal treatment for chronic pain. He was formerly morbidly obese but in the last six months has worked actively to improve his physical health and lose weight.

   7.His work ethic improved and in 2013, he was self-employed working at Royal Adelaide Hospital for nearly three years and then at the University of South Australia. Further, he has maintained employment in prison.

   8.He has completed a Certificate in Business Studies and has a career ambition to become a qualified social worker specialising in working with at-risk youths, albeit Dr Balfour expressed concern that his antecedent history may be an impediment to pursuing that career path.

   9.He has the ongoing support of his parents, siblings and wife.

   10.He has been imprisoned for two and a half years and remained drug-free. His mental and physical health is significantly improved. He has engaged in productive introspection regarding the seriousness of his legal circumstances and prospect of deportation. He has no connection with Bosnia and Herzegovina and no social networks there. He would arrive in Bosnia and Herzegovina and be socially dislocated and he realises the need to make an effort to fully rehabilitate himself.

   11.Dr Balfour made a number of recommendations including the treatment of his PTSD, referral to psychiatrist, referral to an employment case manager to assist in obtaining employment, referral to support organisations for refugees who have been victims of trauma and social and cultural dislocation, referral to pain clinic and referral to Drug and Alcohol Services South Australia to learn relapse prevention strategies.

   [16] ASM, 39.

   [17] Dr Balfour is referring to those offences for which he was sentenced by Judge David in 2017.

10. In evidence, the Applicant was referred to the report of Dr Balfour. He agreed the factual summary as referred to in the report. In reference to the prognoses one to 11, outline above, the Applicant said the main factor leading to his offending was his use of Ice and drugs which were not a factor in recent years. He said that in 2016, he had a relapse for about one month when he was found in possession of an Ice pipe. He said he had just finished a job at the hospital, and he was stressed and did not know how to cope. Subsequently, with the help of his wife, he contacted a psychologist and got on top of that relapse. He has remained drug-free since that time.

11. He disconnected with negative people in his life and in prison took himself away from anything to do with drugs and hence requested to go into protective custody. In jail he was called a “dog”. This he said was a voluntary step to get away from past life and away from drugs.

12. He agreed with Dr Balfour’s opinion that his relationship with his children and wife were highly motivating for him not to reoffend. He said the relationship with his wife is strong and he speaks with them regularly by telephone. Following their separation, they reconciled just before he went into prison and he speaks to the children a lot now, particularly since being placed in immigration detention.

13. With respect to his chronic pain, the Applicant said that pain also led him to drinking but that he has been a lot better now since he has lost weight and he intends to seek treatment when released.

14. Insofar as Dr Balfour referred to the Applicant’s employment, it was noted that he does not want to return to employment as a plasterer but has employment arranged as a painter should he be released and returned to the community. His main desire is to pursue a career as a drug and alcohol counsellor.

15. Insofar as Dr Balfour recommends various therapy courses his understanding is that most places are expensive and will be financially difficult to maintain unless subsidised, but he will be happy to pursue those recommendations.

    LEGISLATIVE FRAMEWORK

16. Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:

    (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)    paragraph (6)(e) (sexually based offences involving a child); and           

    (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

17. Pursuant to s 501(6)(a) of the Act, a person does not pass the character test if the person has a “substantial criminal record” as defined in s 501(7) of the Act. Section 501(7) of the Act relevantly provides that, for the purposes of the character test, a person has a substantial criminal record if:

    (a)the person has been sentenced to death; or

    (b)the person has been sentenced to imprisonment for life; or

    (c)the person has been sentenced to a term of imprisonment of 12 months or more; or

    …

18. Pursuant to s 501CA(4) of the Act, the Minister, or the Tribunal in place of the Minister, may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

    ISSUES

19. The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations in accordance with the Respondent’s invitation. 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”; or

    (b)pursuant to s 501CA(4)(b)(ii) of the Act, whether there is “another reason” why the original decision should be revoked.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

20. The Applicant concedes that he does not pass the character test as he has been sentenced to a term of imprisonment of at least 12 months. I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.

    IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

21. In considering whether there is another reason why the original decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act 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.

22. In this case, the relevant direction is Ministerial Direction No. 79 (“the Direction”) which was issued on 20 December 2018 and applies on and from 28 February 2019. This Direction replaces what was previously Ministerial Direction No. 65.

    MINISTERIAL DIRECTION NO. 79

23. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)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 to 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.

24. 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 refuse to grant a visa to a visa Applicant, cancel the visa of a visa holder, or 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, refusal, cancellation of the visa, or 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 or more primary considerations may outweigh other primary considerations.

25. The Direction further provides guidance for decision makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker 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.

26. 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.

27. The Other Considerations which must be taken into account where relevant are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are (but not limited to):

    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.

28. The Tribunal will now address these considerations.

    Primary Consideration A: Protection of the Australian community

29. Paragraph 13.1 of the Direction sets out the first of the Primary Considerations the Tribunal should have regard to, and relevantly provides:

    (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.

30. The Tribunal will address each of the considerations in paragraphs 13.1(2)(a) and 13.1(2)(b) of the Direction.

31. 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 very seriously;

    b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    e)The frequency of the non-citizen’s offending and whether there is any 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 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);

    i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …

1. Paragraph 13.1.2 of the Direction provides factors to be considered in determining the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It relevantly states:

   (1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

   a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   b)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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

2. The Applicant was an impressive witness. I accept his evidence. He was both credible and reliable in his evidence which has remained consistent over time. The personal history given to Dr Balfour was consistent with his evidence before the Tribunal.

3. The Applicant demonstrated self-awareness with respect to his drug addiction, particularly insofar as he was prepared to acknowledge that his journey to recovery is not complete.  The Applicant did not seek to minimise the seriousness of his offending, which included violence, but were committed when he was addicted to drugs and alcohol and suffering from an untreated PTSD condition. Involvement with drugs, including insidious drugs such as methylamphetamine, is very serious.

4. The Applicant’s personal history is very important in considering this Primary Consideration, as it is with Primary Consideration C and the Other Considerations.

5. The Applicant arrived in Australia in 1999, just before his fifteenth birthday. He had a difficult life in Yugoslavia, including in a concentration camp with some of his family members. Following their escape, his life in Germany improved; however, when he came to Australia, he found himself being abused by boys from the Serbian community. He did not complete year 12. He went to TAFE but unfortunately the combination of his personal factors led him to consume alcohol and subsequently drugs, including methylamphetamine.

6. It is important to note that the Applicant had been diagnosed with PTSD. The evidence suggests that this diagnosis occurred more than once, possibly in 2000, 2004 and 2005. However, his condition was never treated and as Dr Balfour reported, drugs, and arguably alcohol, was the Applicant’s way of dealing with his personal demons and self-medicating. His addiction to drugs then led to his offending to maintain his habit.

7. Having come from life as a refugee, including escaping a concentration camp during the Yugoslav civil war and witnessing atrocities as a young boy, it is not apparent from the evidence, that any enquiry was made with respect to his mental health upon his arrival in Australia. Nonetheless, it is clear that as a teenager, and then a young man, he had not received treatment for his mental health condition.

8. The Applicant’s antecedent criminal history indicates that he was extended leniency by the courts including, on occasions, receiving suspended sentences. In 2012, the Applicant had undertaken a successful program in the Drug Diversion Court, and he was linked in with a psychiatrist who had indicated a need to continue to see the Applicant. The Applicant had taken steps to stop using drugs and was committed to abstinence. He was presenting well. The Learned Sentencing Magistrate observed:[18]

   There is thus 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 you to offend in such a serious way have now been addressed. They clearly were not addressed when you were on a suspended sentence bond in 2003, nor were they addressed when you were on parole in 2008 or 2009.

   [18] AB, 38

9. The Applicant said in evidence, and I accept, that it was the birth of his first child in 2013 that made him re-evaluate his life and take significant steps to address his drug addiction and consequently his criminal offending including by seeking help from a psychologist and psychiatrist. Also, of significance, was the birth of his second daughter in 2015 and his reconciliation with his wife.

10. Hence, other than a brief relapse in 2016, the Applicant’s principal offending occurred in or before 2013, and he was not convicted for an offence committed since that time. The Tribunal accepts that this was because of his determination to overcome his addictions, and to engage with professional help to address his PTSD, motivated particularly by the birth of his first child and to the ultimatum given by his wife following separation.

11. In 2017, the Learned Sentencing Judge dealt with offences that occurred approximately four years earlier at a time when the Applicant was still in the grips of his methylamphetamine addiction. Those offences were committed on 6 and 7 April 2013, albeit those offences were driven by financial gain rather than drug abuse. Importantly, in the following four years the Applicant had made significant improvement including abstaining from drugs, save for a brief period of one month in 2016.

12. The Learned Sentencing Judge observed that in the 16 months prior to sentencing, the Applicant had attended more than 20 psychological sessions. Her Honour received a psychological report which said that the Applicant was suffering from PTSD and major depression as a result of early childhood trauma. The Applicant was reported to have made a marked improvement in his psychological condition and gained understanding and insight into his offending.

13. It is also to the Applicant’s credit that whilst being in custody and immigration detention he has remained drug-free, evidenced by the negative urine samples, and further, that he requested isolation from the mainstream prisoners to ensure he did not engage with others who might be involved in drugs which I accept were available to him in prison.

14. The Tribunal received evidence from the Applicant’s wife including a letter dated 2017[19] and a second letter dated 24 January 2019[20] and her evidence at first instance.[21] That evidence corroborated the Applicant’s evidence. She said that following the birth of their first child, and because of the trouble he had had with the law and the difficulties in their relationship she decided to separate and gave the Applicant an ultimatum. Her evidence reads:[22]

    When I left him, after our child was born and I gave him the ultimatum kind of thing and said you know that's enough is enough you have a kid, wake up. I didn't want to jump back in that relationship with him until I was sure that he's actually going to be a different person …

    She explained that it was only after that separation that the Applicant came to her and said he realised he needed help and that he went and sought the assistance of a counsellor and psychiatrist.

    [19] AB, 103-105.

    [20] AB, 882-885.

    [21] AB, 1048-1060.

    [22] AB, 1049.

15. Their relationship gradually improved. Their second child was conceived and born in 2015 while still separated and then they formerly reconciled approximately six months before the Applicant was imprisoned. She said that she wanted to be sure that the Applicant had done all the right things by her and her children. She said that she was convinced that he had, and they reconciled.

16. To her credit, she also conceded that the Applicant was not without risk of reoffending but that he would need to continue to work on his abstinence. He has her support and the support of other members of his family.

17. In submissions, the Applicant’s Counsel referred to his personal history, in particular, that he witnessed atrocities during the Yugoslav civil war and when he arrived in Australia he was ostracised and subjected to racism. He had an undiagnosed PTSD condition which led to his criminal offending. He was first convicted of an offence aged 17 years. He acknowledged he received two warnings about the cancellation of his visa prior to his marriage. But this occurred before any action had been taken to address his addiction, and PTSD diagnosis. This action occurred after the birth of his first child.

18. Counsel referred to the six urine tests which are all negative and that his last positive urine test was in February 2012. The Applicant has good relationships with staff and peers within the prison system and is engaged in numerous programs to better himself.

19. Counsel referred the Tribunal to the Applicant’s criminal offender history. It was accepted that insofar as the Applicant was sentenced in 2017 the offending occurred in April 2013.

20. His appearances before the courts between 23 January 2014 and 18 June 2015 was for offences, including breach of bond, committed between April 2013 and October 2013. Other than one brief relapse, the Applicant was not dealt with by the courts for criminal offences. This demonstrated that the Applicant had made significant efforts and progress in his rehabilitation.

21. Counsel submitted that given all the circumstances, including those referred to in the Applicant’s SoFIC, which the Tribunal has considered, the Applicant was not a risk to the Australian community but was a person determined to play a positive role in the community in the future.

22. Counsel for the Respondent referred to the nature and seriousness of the Applicant’s criminal conduct and that his offending behaviour was serious. It was submitted that there were 67 separate convictions and that he was a frequent offender. The cumulative effect of his offending, it was submitted, was serious.

23. Counsel submitted that the 2003 offending was premeditated, extremely serious and committed whilst on bail. The offending for which he was dealt with in 2012 was serious and not isolated. Given the number and range of offences, the Applicant demonstrated a continuing disregard for the law.

24. Counsel reminded the Tribunal that the Applicant was warned in 2005 and 2008 by the Department about the potential consequences for his migration status should he continue to offend. In evidence, the Applicant conceded that he did not take those warnings seriously. Therefore, it was submitted, the seriousness was amplified because the warnings were disregarded.

25. It was submitted that the Applicant was a risk of reoffending and that if offending was similar in nature to his past offences, they would likely cause physical and financial harm. Counsel referred to the sentencing remarks of various courts to which I have referred. It was submitted that he had persuaded numerous judges about his efforts and his enthusiasm and had received leniency from the courts, yet he failed. Further, it was submitted that the Applicant’s recent rehabilitative courses should be given little weight. He has made efforts to rehabilitate before but failed. It was noted that the Making Changes program was a compulsory program.

26. Counsel also referred to the report of Dr Balfour and that the Applicant’s prognosis to cease offending is fair. That opinion was based on the Applicant continuing in a program directed to treat his PTSD but there was no program in place and the evidence of future intention to engage in such a program was vague. Previous intentions, it was submitted, had not been successful.

27. Counsel submitted that even though the Applicant has the support of his wife, he has lived with her since about 2006 and was not able to remain drug-free. Insofar as the Applicant had a relapse in 2016, he said that it occurred due to long working hours and stress. Counsel submitted that there was not a satisfactory length of time when the Applicant was able to remain drug-free in the community.

28. It was submitted the Tribunal should find that there is a real risk of the Applicant reoffending which, combined with his history of serious offending, should necessitate the Tribunal assigning significant weight against the revocation of the visa cancellation.

    Conclusion: Primary Consideration A

29. There is no dispute that the Applicant’s offending was serious, and I find accordingly. It is also relevant that the Applicant offended after receiving two warnings, which the Tribunal must take into account. The Applicant received the first wanning in 2005 aged approximately 21 years, which I accept did concern him, and the second in 2008 which he clearly received but which I accept, he does not now recall. It is relevant however, that when both were received the Applicant was dealing with untreated PTSD compounded by alcohol abuse, and subsequently drug abuse which mitigates the regard I have for those warnings when giving weight to this Primary Consideration.

30. The Tribunal had the benefit of a lengthy and helpful report from Dr Balfour. I accept that report. In that report he opined that the Applicant has PTSD and resorted to illicit drug abuse to self-medicate and then subsequently offended.

31. In assessing the Applicant’s prognosis to cease offending, Dr Balfour applied a prognosis rating scale of poor, fair, and good, and opined that the Applicant’s prognosis was fair. Of particular importance, and despite the diagnosis of PTSD when a teenager and a young man, and further despite the Applicant having engaged with the psychologist for some period of time and a psychiatrist, Dr Balfour reports that the Applicant, ‘has not had specialist psychological treatment that has specifically targeted his PTSD’[23] and that ‘he requires specialist treatment for his PTSD by a clinical psychologist who specialises in EMDR’.[24] Dr Balfour also reports that the success rate for treatment with EMDR, is approximately 70 to 80 per cent and that he anticipates:[25]

    … the effective treatment of [the Applicant’s] PTSD will alleviate his trauma symptoms, and he will no longer be vulnerable to self-medicating with illicit drugs because he will have developed alternate of adaptive coping strategies.

    [23] AB, 38.

    [24] AB, 38-39.

    [25] AB, 39.

32. It is therefore significant that despite the Applicant not receiving PTSD specific treatment, he has, since 2013, demonstrated a persistent determination to overcome his drug and alcohol addiction. It is also relevant that when he relapsed for one month in 2016, he sought the help of his wife and engaged with professional services to deal with the issue.

33. Throughout his life in Australia, the Applicant has struggled with PTSD, which although diagnosed, has never been appropriately treated. This has also been compounded by his depressive condition which I infer was further impacting upon his mental health. I note that he was being treated by his former psychologist who provided a report to the District Court in 2012 and confirmed his progress by the time he was sentenced in that court.

34. If I were considering this matter and the sentence imposed by the Learning Sentencing Judge in 2017, which gave rise to the mandatory cancellation of his visa, proximate to the date of his offending in 2013, the weight that I would attribute to this Primary Consideration would be greater. But I have significant regard to the fact of the Applicant’s abstinence from drugs and alcohol use, taking into account the short relapse, and his demonstrated determination to rehabilitate himself over a period of seven years before the matter came before me. I accept that drugs and alcohol are available in prison and home detention. His request that he be placed in protective custody in prison to avoid contact with drugs and drug users, further evidences that determination.

35. I accept the Applicant’s evidence that the birth of his two children, the future of his marriage, his relationship with his family and the fact that he left Bosnia and Herzegovina at a very young age and if deported he has nothing to return to, are all factors providing a very strong motivation to continue to abstain from drugs and alcohol and not reoffend.

36. As Dr Balfour observed, the Applicant has not had treatment that specifically targeted his PTSD, and in particular by a clinical psychologist who specialises in EMDR. The absence of such treatment means that he has not had effective treatment to alleviate his trauma symptoms and his vulnerability to self-medicating by developing alternate and adaptive coping strategies. The absence of that specialist treatment means, to some extent, the Applicant remains an unacceptable risk of reoffending. However, I take into account that the Applicant has undertaken all treatment available to him when in custody and immigration detention. The passage of time since he committed the offences which gave rise to the mandatory cancellation of his visa is also a significant consideration when determining the likelihood of the Applicant engaging in further criminal or other serious conduct. The determination demonstrated by the Applicant and his intention to undergo recommended treatment should his visa be reinstated, is also relevant in assessing the risk to the Australian community should he engage in further criminal or other serious conduct.

37. When balancing those factors, there remains a risk of reoffending. However, given the passage of time between the date of the relevant offences and the sentence of imprisonment, together with those factors to which I have referred that demonstrate the Applicant’s determined efforts to rehabilitate and remain drug free over a period of approximately seven years, I give medium weight to this Primary Consideration in favour of the non-revocation of the Applicant’s visa.

    Primary Consideration B: The best interests of minor children in Australia

38. 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 to revoke or not revoke the mandatory cancellation decision is expected to be made.

    (3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

    (4)In considering the best interests of the child, the following factors must be considered where relevant:

    a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    e)Whether there are other persons who already fulfil a parental role in relation to the child;

    f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    g)Evidence that the non-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.

39. The Applicant’s daughters were born in 2013 and 2015. Their interests do not differ and will be considered together.

40. The Applicant has played a parenting role in respect of both children from their birth to date. In respect of his eldest child, the Tribunal accepts that even though he and his wife were separated for a period of time, the Applicant was in daily contact with his oldest daughter and was involved in the day-to-day decisions in respect of her upbringing.

1. In his written statement, which was signed but undated,[41] the Applicant submitted that if he is returned to Bosnia and Herzegovina, he will be homeless, particularly after his Australian Government support ceases.

   [41] AB, 876-879.

2. The Applicant escaped his country of origin when he was seven years of age when his country was in the grips of a civil war. The whole of his immediate family lives in Australia. His extended family live elsewhere in Europe. He has no family or connection with his country of origin. He has no one who can provide personal or financial assistance to him in Bosnia and Herzegovina.

3. The Applicant has basic conversation skills but is unable to read or write in his native language. This will contribute to his difficulty to integrate back into the community.

4. The Applicant also requires PTSD specific treatment, as identified by Dr Balfour. I infer that such treatment would be available in Bosnia and Herzegovina; however, given the Applicant’s likely financial difficulty compounded by his lack of literacy skills, his ability to seek out and engage in such treatment will be difficult albeit not insurmountable.

   Conclusion: Other Consideration (e)

5. The Tribunal accepts that should the Applicant return to Bosnia and Herzegovina he will face significant challenges. The absence of family, friends and financial support, together with his mental health issues will all impact upon his ability to establish and maintain basic living standards commensurate with others in that community.

6. He has a need for ongoing mental health treatment as identified by Dr Balfour. The stress and distress that will likely occasion his return to Bosnia and Herzegovina will add to his mental health condition and be an added impediment to the Applicant. The Tribunal has also had regard to those matters referred to in Primary Consideration A and Other Consideration (a). The Tribunal accepts that the Applicant has a fear of returning to Bosnia and Herzegovina, brought about by worry and speculation, which will impact significantly upon his mental health condition and potentially to his detriment.

7. Accordingly, it is in the Applicant’s best interest that his visa cancellation be revoked, and the Tribunal gives significant weight to the Other Consideration (e) in favour of the Applicant.

   CONCLUSION

8. Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.

9. Based upon the Applicant’s serious offending, he does not pass the character test as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, the Tribunal finds:

   (a)Primary Consideration A is given medium weight in favour of the Respondent;

   (b)Primary Consideration B weighs heavily in favour of the Applicant;

   (c)Primary Consideration C weighs moderately in favour of the Respondent;

   (d)Other Consideration (b) weighs significantly in favour of the Applicant;

   (e)Other Consideration (c) weighs slightly in favour of the Applicant;

   (f)Other Consideration (e) weighs significantly in favour of the Applicant.

10. The Tribunal therefore finds that, taking into account all of the Primary and Other Considerations in the Direction, they weigh in favour of the revocation of the mandatory cancellation of the Applicant’s visa.

11. Consequently, the Tribunal does exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.

    DECISION

12. For the reasons outlined above, the Tribunal sets aside the decision under review. In substitution, the Tribunal decides that the mandatory cancellation of the Applicant’s Class BA Subclass 200 Refugee visa be revoked.

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.....................[Sgnd]............................

Associate

Dated: 7 July 2020

Date of hearing:	10 March 2020
Advocate for the Applicant:	Emily Rutherford, Camatta Lempens Lawyers
Advocate for the Respondent:	Chloe Hillary, Australian Government Solicitor