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

XYTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4823 (31 December 2021)
Division:GENERAL DIVISION
File Number: 2021/7488
Re:XYTT
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:31 December 2021
Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...[SGD]................................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – extent of impediments if removed to the United Kingdom – links to the Australian community – strength, nature and duration of ties to Australia – Applicant is a 66-year-old man who arrived in Australia as an infant and has never visited the United Kingdom – Applicant is a victim of child sexual abuse from when he was 8 years of age by Christian Brothers Priests at the Castledare Boys’ Home and at the Clontarf Boys’ Home – Applicant subsequently sexually abused as a child at the Riverbank Reformatory whilst a ward of the State of Western Australia – child sexual abuse considered as a separate other consideration – Applicant suffers from numerous significant health conditions – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4362
JFSQ and Minister for Home Affairs [2019] AATA 616
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 7(2), 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4.1(1), 9.4.1(2), 9.4.2(3)
Royal Commission into Institutionalised Responses to Child Sexual Abuse (Final Report, December 2017)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
31 December 2021
BACKGROUND

The Applicant is a 66-year-old man who was born in the United Kingdom. He arrived in Australia in early October 1955 as an infant aged approximately six months, with his parents and four brothers (G36/266). He has not returned to the United Kingdom since his arrival in Australia.
The Applicant was sexually abused as a child, commencing from when he was eight years of age. He was first sexually abused by Catholic priests of the Christian Brothers congregation at the Castledare Boys’ Home and then at the Clontarf Boys’ Home. He was subsequently placed in the State-run Riverbank Reformatory as a teenager where he suffered further abuse until he was 17 years of age. The abuse perpetuated a cycle of truancy, behavioural problems, alcohol dependency and a heroin addiction spanning approximately 25 years, followed by methylamphetamine use.
The Applicant commenced offending as a teenager, committing offences such as stealing, unlawful damage, break enter and steal, and driving offences (R2/100-103). The Applicant continued to offend as an adult, with his offending being linked to his alcohol and drug dependency. As a result, the Applicant has an extensive criminal history.
On 19 November 2019, the Applicant was convicted of numerous offences in the Perth Magistrates Court. These included two separate convictions for “Steal Motor Vehicle”, for which he received concurrent sentences of imprisonment of three months each. He was also convicted of two burglary offences for which he received a one-year concurrent, and a one-year cumulative sentence of imprisonment (R2/84-85), as well as a “stealing” offence for which he received a three-month concurrent term of imprisonment (Visa Cancellation Offences). It was this offending that triggered the subsequent cancellation of the Applicant’s Absorbed Person visa (Applicant’s Visa).
On 9 January 2020, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G35/259-265) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The notice of the Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
On 29 January 2020, the Applicant requested revocation of the Cancellation Decision and made representations and submitted evidence in support of his revocation request (G21-G52).
After considering the Applicant’s representations, on 7 October 2021, a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/8–10). This is the Reviewable Decision currently before this Tribunal.
The Applicant was notified of the Reviewable Decision in a letter dated 7 October 2021 which was delivered to him by hand on 11 October 2021 (G3/8–10).
On 13 October 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–7). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the

Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the

84-day period started running from 11 October 2021, meaning that I must hand down a decision on or before 3 January 2022.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 9 December 2021 and 10 December 2021 at the Tribunal Registry in Perth. The hearing took place in person, except for Mr O’Donoghue of counsel who represented the Applicant pro-bono and appeared via Microsoft Teams from Melbourne. I extend my sincere thanks to Mr O’Donoghue for appearing pro-bono for the Applicant.
The Respondent was represented by Mr Beetham of counsel, instructed by Mr Shinnick.
The Applicant gave oral evidence at the hearing and was cross-examined. No other witnesses were called. The Applicant sought to call his niece, FH as a witness, however, despite repeated attempts from my Associate, and from Mr O’Donoghue, she was unable to be contacted.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s typed statement (undated) filed on 1 December 2021 (Exhibit A1);
(b)Email from the Applicant dated 30 November 2021 containing a statement signed “[FH]” (Exhibit A2);
(c)Letter from Bradley Bayly Legal dated 26 November 2021 (Exhibit A3);
(d)Applicant’s statement (undated) filed on 2 December 2021 (Exhibit A4);
(e)Handwritten statement from the Applicant filed on 6 December 2021 (Exhibit A5);
(f)s 501 G-Documents, labelled G1 to G53, comprising pages 1 to 336 (Exhibit R1); and
(g)Supplementary Documents, labelled S1 to S26, consisting of pages 1 to 268 (Exhibit R2).
The following written submissions were filed by the parties:
(a)Respondent’s Statement of Facts, Issues and Contentions, dated 12 November 2021;
(b)Applicant’s Statement of Facts, Issues and Contentions, dated 1 December 2021 (ASFIC); and
(c)Respondent’s Reply Submissions dated 7 December 2021.
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)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.
Section 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal—see definition of “decision-maker” in para 4(1) of Direction No 90) must take into account the primary considerations listed in para 8 of Direction No 90, and the other considerations listed in para 9 where relevant (para 6 of Direction No 90).
Specifically, para 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if he is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted in the “background” section above, on 19 November 2019, the Applicant was convicted of the Visa Cancellation Offences in the Perth Magistrates Court for which he received an effective term of 12 months imprisonment comprised of three concurrent sentences of imprisonment of three months each, a one-year concurrent, and a one-year cumulative sentence of imprisonment (R2/84-85). He has therefore been sentenced to a term of imprisonment of 12 months or more, and as a result, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.

The Applicant accepts that he does not pass the character test due to his “substantial criminal record” (ASFIC, para [4]; transcript/12).
Accordingly, the Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)   where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
I will first consider the nature and seriousness of the Applicant’s offending (Direction No 90, para 8.1.1(1)).
The Applicant’s criminal history is typical of a person who has had ongoing issues with alcohol and drug abuse throughout his life. His offending history reflects his issues with addiction. I will now summarise his offending history (R2/84-103).
(a)The Applicant’s criminal history records historical assault offences comprising two counts of “assault aggravated police” (1985), “assault unlawful (common)” (1971 and 1983), and two counts of “assault aggravated” (1973) (Assault Offences).
(b)He has multiple dishonesty and property related offences including “break, enter and steal”, “burglary and commit offence in place”, “stealing”, “attempted stealing”, “gains benefit by fraud”, “receiving”, “possessing stolen or unlawfully obtained property”, stealing motor vehicles and “unlawful damage”. The Applicant was also convicted of “robbery whilst armed in company” in 1985.
(c)The Applicant has numerous offences related to drug possession and drug use including cannabis possession offences and a cannabis cultivation offence, being under the influence of a drug, heroin possession, other offences for “possess prohibited drug” and “possess prohibited drug with intent” and possessing a quantity of heroin with intent to sell or supply. In 1985, he was convicted of the more serious offences of being “knowingly concerned in import[ing] heroin” (Heroin Importation Offence) and of possessing a quantity of heroin with intent to sell or supply (Heroin Possession Offence).
(d)He has numerous historical driving offences including driving whilst suspended, reckless driving and unlicensed driving. However, the most recent offence of “excess 0.08%” was committed in 1981, some 40 years ago.
(e)The Applicant also has numerous offences involving non-compliance with lawful authority including “escape legal custody”, giving a false name, breaching bail conditions, “resist arrest”, “breach of bail undertaking” and two breaches of a suspended imprisonment order.
I observe that the Applicant has not committed any of the crimes or conduct listed as being “very serious” and “serious” in sub-paragraphs 8.1.1(1)(a) and (b), except for the Assault Offences which would fall within the “violent” category (8.1.1(1)(a)(i)). They are, however, at the lesser end of the scale of seriousness than other violent offences such as unlawful wounding and grievous bodily harm.
Paragraphs 8.1.1(1)(a) and 8.1.1(1)(b) of Direction No 90 do not limit the range of offences that can be regarded as serious. On 11 March 1985, the Applicant was convicted of the Heroin Importation Offence. The Applicant conspired with two other offenders to import heroin, with the Applicant financing the heroin courier’s trip to south-east Asia (G19/124). On 25 March 1985, the Applicant was convicted of the Heroin Possession Offence. The Drug Squad had found heroin buried in the backyard of the Applicant’s house (G17/112). Drugs cause serious harm to members of the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]–[83]). Accordingly, I find that the Heroin Importation Offence and the Heroin Possession Offence were serious.
I will now consider sentences imposed by the courts (para 8.1.1(1)(c) of Direction No 90). The Applicant’s court history shows that he received numerous fines for many of his offences. However, he has been sentenced to terms of imprisonment on approximately 23 occasions, with his first adult sentence of 12 months in total being in February 1974 for reckless driving whilst being suspended and under the influence of alcohol. Given the number of prison sentences which the Applicant has been sentenced to, I will discuss several examples.
His most recent term of imprisonment was from 2 October 2019 (G7/38) for the Visa Cancellation Offences, for which he received an effective term of 12 months imprisonment without parole eligibility. He received a seven-year term of imprisonment for the Heroin Importation Offence and a cumulative five-year sentence of imprisonment for the Heroin Possession Offence, which is indicative of the very serious nature of these offences.
On 8 July 1985, the Applicant was convicted of “robbery whilst armed in company” and was sentenced to an indefinite term of imprisonment at the Governor’s pleasure under the now repealed s 662(b) of the Criminal Code1913 (WA).
On 30 November 1998, the Applicant was sentenced to a term of five years imprisonment for “robbery whilst armed in company”. The Applicant and his partner entered a bank during business hours wearing balaclavas. The Applicant was armed with a replica pistol which he used to threaten staff and customers, leaving with a pillowcase full of money, before escaping in a stolen vehicle (G16/107).
In PNLB and Minister for Immigration and Border Protection [2018] AATA 162, Senior Member Poljak stated at [22] that: “[s]entences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved”. I find that the Applicant’s numerous sentences of imprisonment, including numerous lengthy sentences, indicates the overall seriousness of his offending (paragraph 8.1.1(1)(c) of Direction No 90).
Regarding the frequency of the Applicant’s offending (para 8.1.1(1)(d) of Direction No 90), his criminal history is lengthy and spans over 50 years. He first appeared in court as a juvenile in 1968 when he was 12 years old, where he was convicted of stealing and attempted stealing offences (R2/103). He offended regularly, with convictions being recorded in each year until he turned 18. From the age of 18, the Applicant continued to frequently offend, committing approximately eight driving offences and 117 criminal offences. The only gaps in his offending are due to terms on remand or of imprisonment. His most recent offences were committed when he was 64 years of age.
Despite the frequency of offending, I am not of the opinion that there is a trend of increasing seriousness (para 8.1.1(1)(d) of Direction No 90). Whilst the Applicant has committed some serious offences, such as his Assault Offences, the most recent of these offences was committed approximately 36 years ago. Similarly, his Heroin Importation Offence and the Heroin Possession Offence were committed approximately 36 years ago. I find that overall, the Applicant’s offences largely consist of dishonesty and drug related offending which have not increased in seriousness.
The number of the Applicant’s offences, his numerous fines, his numerous sentences of imprisonment, and his breaches of court-imposed orders, are likely to have burdened the resources of the police, the courts and corrective services. His dishonesty offences which include stealing and fraud offences are numerous and would have had a detrimental financial impact on individuals and businesses. I find that there is a cumulative effect of the repeated offending of the Applicant (para 8.1.1(1)(e) of Direction No 90).
There is no evidence of the Applicant providing false or misleading information to the Department, including by not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 90), and so this consideration is not relevant.
Paragraph 8.1.1(1)(g) of Direction No 90, requires the Tribunal to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status.
The Applicant was first warned that his visa was liable to be cancelled due to his offending in a letter from the Department dated 9 October 2006. The letter stated that the Minister had decided not to cancel the Applicant’s Visa on that occasion but that “you are warned that any further criminal conviction will lead to reconsideration of the cancellation of your visa” and that, “[d]isregard of this warning will weigh heavily against you if your case is reconsidered”. The Applicant signed to acknowledge receipt of this warning letter on 12 October 2006 (G32/246-249).
A further written warning in a letter from the Department dated 10 July 2013 stated that “any further criminal convictions, or any other conduct on [the Applicant’s] behalf that comes within the scope of subsection 501(6), could result in the cancellation of [his] visa”. However, the Applicant cannot recall receiving this written warning, and the acknowledgment of receipt is unsigned (G33/250-254; G51/310; transcript/102).
On 3 March 2015, the Applicant’s Visa was cancelled. However, in a letter dated 10 August 2016, the Department advised the Applicant that, after considering representations made through the Applicant’s former legal representative, the decision-maker had decided to revoke the decision to cancel his Visa. The letter warned that, “this decision does not mean that your case cannot be reconsidered again on character grounds in the event of criminal offending by you”. The Applicant signed to acknowledge receipt of this warning letter on 11 August 2016 (G34/255-258).
I accept the Applicant’s evidence that he only recalled signing two of the three warning letters. The Applicant was candid at the hearing, admitting that he did not take the warnings seriously (transcript/69).
Overall, I find that the Applicant has a lengthy and persistent history. His most serious offences are historical, and there is no overall trend in seriousness. He has received multiple fines and has served numerous terms of imprisonment which did not deter him from further offending, and his history of frequent offending would have had a cumulative effect. He has also committed further offences after receiving two out of three warnings, the most recent of which was given after a prior cancellation of his Visa in 2015. Overall, I find that the nature and seriousness of the conduct (para 8.1.1 of Direction No 90) weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm (para 8.1.2(2)(a) of Direction No 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 90).
The Applicant has also committed offences of a general nature including dishonesty and property offences. Broadly speaking, offences against property are less serious than offences against persons, but such offences can also result in psychological and financial harms to victims, as well as contributing to increased costs for businesses including insurance premiums which are ultimately passed on to consumers.
The harms of trafficking in drugs were discussed in SCJD by Senior Member Cameron who stated at [81]–[83]:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels. As was noted by Senior Member Cameron in SCJD, these harms include the prevalence of drug-related crimes, including violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families. Indeed, the harms described by Senior Member Cameron in paragraph [82] of the excerpt above are true of the Applicant, whose criminal history includes dishonesty offences committed to support his alcohol and drug addictions.
I am not of the opinion that there is any likelihood of the Applicant committing any violent offences. As I have previously stated, his most recent Assault Offences were two counts of “assault aggravated police” committed in 1985, approximately 36 years ago. The Applicant is also a frail man with numerous health and mobility issues. I discuss these in more detail below under the extent of impediments if removed other consideration.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (para 8.1.2(2)(b)(i) and sub-para (ii) of Direction No 90).

Unfortunately, there is no psychological or other formal assessment of the Applicant’s likelihood of reoffending before me. However, as I noted above, the Applicant has a lengthy and frequent criminal history over a period spanning approximately 50 years. He has served numerous sentences of imprisonment, and yet after serving these terms of imprisonment, he has reoffended. Indeed, the Applicant committed some of the Visa Cancellation Offences shortly after his release from prison, however, the sentencing Magistrate acknowledged that the support the Applicant “expected from Outcare and other services was not there” when he was released (G7/36). He has also failed to comply with court orders, including having breached two suspended imprisonment orders and has several breaches of bail. This lengthy history of repeat offending, despite the imposition of fines and prison sentences, tends to suggest that there is some likelihood of the Applicant reoffending in the future.
Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. The Applicant is, in my view, remorseful for his offending history. The Applicant showed insight into the link between his childhood abuse, his drug and alcohol misuse, and his offending. However, he acknowledged that the abuse he suffered as a child was no excuse for his criminal behaviour (G23/186). I found the Applicant to be honest and candid when giving evidence at the hearing. He did not attempt to minimise his offending in any way, and accepted responsibility for his actions. This finding is consistent with the comment of the sentencing Magistrate for the Visa Cancellation Offences who observed that the Applicant “accepted responsibility for [his] offending at an early opportunity” (G7/36).
The Applicant also appreciates the consequences of any future offending on his immigration status, stating, “now, I’ve got to realise I can’t get away from immigration” (transcript/69). He also stated that he realised he would not get another chance to stay in Australia if he reoffended (transcript/100-101).
I find that the Applicant’s remorse and insight, and the reality of facing deportation to an unfamiliar country where he will be separated from his partner and family, are protective factors that will lower the likelihood of reoffending.
The Applicant also has a plan for the future that will assist to provide him with some stability and purpose. He plans to find stable accommodation for himself and his partner with the help of some of his criminal injuries compensation money where he can store his art supplies, paint, and possibly finish his art studies (A5). In the interim, the Applicant has accommodation with his niece, FH. There was some question about the origin of an email purporting to be from FH confirming an offer of accommodation (A2). However, as I have noted above, I found the Applicant to be honest and candid and I accept his evidence that he spoke to FH who offered him temporary accommodation. The Applicant plans to help care for his partner who also has health issues. The Applicant’s partner is supportive of him and has written that she will stand by him and support him should he be released (G47/299), as is his niece FH, and other family members including the Applicant’s brother and sister-in-law (G40; G41). He has also engaged with the addiction treatment centre, Holyoake, to help him upon his release (transcript/70). The Applicant’s plan is protective and is likely to reduce the likelihood of his reoffending.
The Applicant has longstanding issues with alcohol and drug dependency, which are directly linked to his offending. His offending has often been to fund his alcohol and drug addictions. In his evidence, the Applicant stated that he started drinking heavily when he was 15 years old. He started using drugs when he was approximately 17 years of age. His drug and alcohol use helped him to forget his childhood sexual abuse and to cope with feelings that the abuse was in some way his fault. Drugs and alcohol also helped him to deal with confusion about his sexual identity and feelings of not being normal. They also helped him to cope with difficulties in having normal relationships with women (transcript/32).
By the age of 19, the Applicant started taking heroin, which he thought was a “cure for all [his] problems”. Heroin use put the Applicant in a “comatose” state and helped him to forget about the abuse so that he “didn’t have to think about anything” (transcript/33-34). His heroin use spanned approximately 25 years and he described it as an addiction. The Applicant subsequently started using methylamphetamine (“ice”) which he said helped him with some sexual issues resulting from his abuse, but unlike heroin, he did not believe he was addicted to “ice”, saying that he “could take or leave ice” (transcript/36).
Part of the Applicant’s plan, if he is released into the Australian community, is to stop using methadone because he had been taking it for 20 to 30 years. He explained that his use of methadone was a daily dose and to obtain it required him to go to a clinic or pharmacy in the community where he was at risk of meeting other drug users. The Applicant explained that suboxone only required a dose every three days. He explained that suboxone was not permitted in prison and detention because it is a wafer (as opposed to a liquid) and could be trafficked. The Applicant has taken steps to facilitate this plan. His evidence was that he had engaged with a doctor in immigration detention and a community organisation called Next Step to transition to suboxone, which could gradually be reduced so that he was not dependent on it after approximately six months (transcript/91-92).
The Applicant was honest about his alcohol and drug use. His evidence was that he “hoped” that he would not use drugs, he knew his drug use must come to an end, and that it was his intention not to use drugs, particularly as there were small children living in the home of FH where he would initially be residing. He also stated that he would not live for much longer if he used drugs or alcohol (transcript/68-69; 95). I accept the Applicant’s evidence that he has not taken any drugs for the last two years during his time in prison and immigration detention. His appreciation of the consequences of drug use on his health and on others, and the two-year period of abstinence, may assist him to remain abstinent if he is released into the community. However, the longstanding nature of the Applicant’s addiction issues and its links with his childhood trauma are nevertheless significant difficulties for him to overcome in the community.
The Applicant’s legal representative submitted that his health conditions, including hepatitis C and a chronic liver condition, mitigate against further offending (ASFIC, para [30]). However, the Applicant made similar representations as part of his revocation submissions when his visa was previously cancelled in 2015 (G24/188), and yet the Applicant continued to reoffend and to use alcohol and drugs. I have discussed the Applicant’s health issues in detail below under the extent of impediments if removed other consideration, which are likely to deteriorate with age. Additionally, one of his conditions affects his ability to walk and stand. I agree that as a matter of practicality, the Applicant’s health conditions would make it more difficult for him to commit certain types of offences and may now be a mitigating factor. However, the fact that similar representations were made in the past raises concerns that a likelihood of reoffending remains.
In summary, there are some factors that weigh against the Applicant because they suggest a likelihood that he will reoffend. These factors include:
(a)his lengthy and frequent offending history;
(b)his long-standing drug and alcohol dependency; and
(c)the fact that fines, sentences of imprisonment, warnings, a previous visa cancellation and his health conditions have not deterred him from reoffending in the past.
However, the factors that tend to suggest a reduced likelihood of reoffending include his:
(a)insight into his alcohol and drug use and its relationship to his trauma and his offending behaviour;
(b)genuine remorse and desire to live a quiet life for the few years he has left with his partner and to look after her;
(c)appreciation of the negative consequences of future drug use and reoffending;
(d)age and deteriorating health issues; and
(e)comprehensive plan for if he is released into the community which includes engagement with Holyoake and Next Step.
After balancing these factors, I am reasonably satisfied on the evidence before me that there is a moderate risk of the Applicant re-offending.
I find that paragraph 8.1.2 of Direction No 90, being risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 90
The Tribunal has found that paragraph 8.1.1(1) of Direction No 90 weighs strongly, and paragraph 8.1.2 weighs moderately against revocation of the Cancellation Decision. Thus, overall, the Tribunal finds that primary consideration 8.1, being the protection of the Australian community, weighs moderately to strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 90)
Paragraph 8.2 of Direction No 90 requires decision-makers to have regard to family violence committed by the non-citizen. The Applicant has not been convicted of any offences involving family violence, nor is there any evidence of family violence related conduct. Consequently, this consideration is not relevant to this application.
The best interests of minor children in Australia affected by the decision (paras 8(3) and 8.3 of Direction No 90)
Direction No 90 requires decision-makers to determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three sub-paras of para 8.3 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, 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.
Paragraph 8.3(4) of Direction No 90 sets out the factors that the decision-maker, in this case the Tribunal, must consider:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Unfortunately, there is minimal information about relevant minor children before me to the extent that I can give them individual consideration. However, below I have identified the children and I have outlined the information that is before me concerning each child to the extent that it was possible.
The Applicant has two great-great-nieces, L (who is five years old), and C (who is three years old). L and C are the daughters of FH’s daughter, R.
The Applicant also has an 11-year-old granddaughter, I, who is the daughter of the Applicant’s son, CD.
The Applicant’s indigenous partner has a granddaughter, O, who is four years old.
The Applicant has four brothers who have adult children with children themselves. Consequently, the Applicant also has many great-nieces and nephews. It was unclear from the Applicant how many of these children were under the age of 18 (transcript/89-90; G22/167).
At the hearing the Applicant stated that when he has been in the community, he saw his grand-nieces and nephews quite often with their parents at family gatherings (transcript/90).
The Applicant has not met C because she was born while he was in custody.
In his revocation request form the Applicant said that his two granddaughters love him dearly and one of the children asks for him every day. It is unclear which children he is referring to, but it appears to me that the reference to his two granddaughters is to I and L, and that the other child asking for him is likely to be O. He also referred to fixing bikes for some of his nieces and nephews (G22/164-165). He also referred to his grandchildren being heartbroken if he was removed from Australia. He stated that the children (apparently a reference to his nieces and nephews) ask about him whenever they see a push bike because he has fixed, painted, and repaired bikes with them in the past (G22/169). He also described taking his nieces and nephews to the beach (G22/165) and giving his nephews hair cuts. Otherwise, there are no known views of the children before the Tribunal (para 8.3(4)(f) of Direction No 90).
Although the Applicant’s relationships with the children are non-parental and they appear to have a parent or parents who care for them, the Applicant appears to be a loving grandfather, step grandfather and great uncle to the minor children (paras 8.3(4)(a) and para 8.3(4)(e) of Direction No 90). If he can abstain from drug and alcohol use and not reoffend, he may be able to play a positive role in the children’s lives in the future (para 8.3(4)(b) of Direction No 90). There is no evidence that the Applicant’s prior conduct has had a direct negative impact on any of the children (para 8.3(4)(c) of Direction No 90).
The Applicant has had long periods of absence from the children due to imprisonment and being in immigration detention. The Applicant stated at the hearing that he currently speaks to I and L every weekend on the telephone (transcript/66-67). This demonstrates that it is possible for the Applicant to maintain contact by other means, such as by telephone or the internet. However, this would be a poor substitute for the Applicant being physically present and involved in the children’s lives (para 8.3(4)(d) of Direction No 90).
There is no evidence that any of the children have been or are at risk of being abused or neglected by the Applicant in any way (para 8.3(4)(g) of Direction No 90). Similarly, there is no evidence that any of the children have suffered any physical or emotional trauma arising from the Applicant’s conduct (para 8.3(4)(h) of Direction No 90). To the contrary, the evidence tends to suggest that the Applicant is a loving grandfather, step-grandfather and great-uncle.
After considering the above factors, the Tribunal finds that revocation of the Cancellation Decision is in the best interests of these minor children, particularly L, I and O. I find that their interests weigh moderately in favour of the revocation of the Cancellation Decision. As the Applicant has not met C and does not appear to have a relationship with her yet, I find that her interests weigh only slightly in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(4) and 8.4 of Direction No 90)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in para 8.4 of Direction No 90, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
Thus, the Tribunal must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.

As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, the decision-maker is being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them. In this regard, the Tribunal agrees with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about what the Australian community’s expectations are with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.4(2)(a)–(f). The Applicant has not committed any of the types of conduct listed in those sub-paragraphs.
Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
With respect to the Applicant, the expectation of the Australian community would be that the Applicant must obey Australian laws whilst he is in Australia. The Applicant has a very lengthy criminal history spanning approximately 50 years. As I found above, overall, his offending is serious given its duration, frequency and volume. However, with the exception of two separate armed robbery offences (in 1985 and 1988), being knowingly involved in the importation of heroin (in 1985) and being in possession of heroin with intent to sell or supply (also in 1985), most of the Applicant’s offences are of a less serious nature. Indeed, most of the Applicant’s criminal offences are, in my observation, somewhat typical of those committed by a person who has had a serious drug and alcohol addiction and whose offending is connected to that addiction. However, given the overall volume and seriousness of the Applicant’s offending, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.4(1) of Direction No 90).
However, I am also guided by the principle contained in para 5.2(4) of Direction No 90 which provides that Australia may afford a higher level of tolerance of criminal or other conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. This applies to the Applicant, who came to Australia as an infant and has lived in Australia for approximately 65 years.
Mr O’Donoghue, the Applicant’s counsel, submitted that the Applicant’s childhood sexual abuse may be relevant to consider as part of this primary consideration to diminish the weight of this consideration applying against the Applicant. In the ASFIC, Mr O’Donoghue referred to the following passage from page 4 of the preface and executive summary of the Final Report of the Royal Commission into Institutionalised Responses to Child Sexual Abuse (2017):
The sexual abuse of a child is intolerable in a civilised society. It is the responsibility of our entire community to acknowledge that children are vulnerable to abuse. We must each resolve that we will do what we can to protect them. The tragic impact of abuse for individuals and through them our entire society demands nothing less.
However, the community expectations primary consideration is a type of deeming provision which states what the community’s expectations are so that decision-makers cannot speculate. Specifically, paragraph 8.4(4) states in part, that “decision-makers should proceed on the basis of the Government’s views … without independently assessing the community’s expectations in the particular case.” Consequently, I cannot consider the views of the Australian community regarding the intolerable nature of child sexual abuse to diminish the weight to be applied to this community expectations primary consideration. However, I can consider the Applicant’s childhood sexual abuse as a separate other consideration, to be weighed against the primary and other considerations in the overall weighing exercise.
On balance, I find that para 8.4 of Direction No 90, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Other considerations (para 9(1) of Direction No 90)
Paragraph 9 of Direction No 90 provides:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests
International non-refoulement obligations (paras 9(1)(a) and 9.1 of Direction No 90)
I am required to consider whether Australia’s international non-refoulement obligations arise on any of the submissions, material or evidence before the Tribunal (paragraph 9.1 of Direction No 90).
Both parties agree that this consideration is not relevant. I agree that in the Applicant’s circumstances, Australia’s non-refoulement obligations are not engaged and therefore this consideration is not relevant.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 90)
Paragraph 9.2(1) of Direction No 90 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is currently 66 years of age and has lived in Australia since he was an infant. Since his arrival he has never been to the United Kingdom (transcript/43).
He is in poor health and suffers from numerous health conditions. In a letter dated 16 January 2020, the Prison Medical Officer at Casuarina Prison stated that the prison medical records confirmed the Applicant suffers from (G43/287):
[a]dvanced Liver cirrhosis, Hepatitis C positiveGenotype 3, Heroin addiction on long term Methadone program, hypertension, Gastro-oesophageal reflux and osteoarthritis of knee joints.
A medical information form dated 24 June 2020 (G44/293) completed by a Dr Tanious whilst the Applicant was in Bunbury Prison described the Applicant’s medical conditions as:
Hepatitis C infection with impairment of Liver disease
Diverticulitis, Depression and anxiety,
Gastro-oesophageal reflux disease. Hypertension.
Dr Tanious described these conditions as “moderately serious” and that they “most probably would deteriorate with age”. With respect to whether these conditions required regular treatment, Dr Tanious further stated (G44/293):
Patient is on multiple medication and receive [sic] multiple follow ups with pathology testing, ultrasounds, scans, and regular liver surveillance. One of his medications would require daily dispensing from pharmacy.
A letter of support dated 6 October 2017, written to the Department of Communities by the Applicant’s local member of Parliament to assist him to obtain public housing referred to the Applicant’s “complex needs” (G45/295). The letter asked for the Applicant to be given ground floor housing “to accommodate his severe bilateral peripheral vascular disease resulting in reduced circulation, necrosis and ulcerations”. The letter also referred to his “inability to walk distances and stand” due to his medical conditions.
At the hearing, the Applicant’s evidence was that he had problems with his feet and that he had not worn shoes for many years and that his legs ache (transcript/39; 87). He said his feet and legs “blow up” to the extent that he has no toenails on his feet and he has difficulty wearing shoes (transcript/39).
The Applicant was also the victim of an assault in approximately January or February 2019 (R2/64) when he was living in a tent at a caravan park. He came to the aid of his partner because four people were trying to grab her handbag. The Applicant was badly beaten and suffered broken ribs, a broken nose, a fractured eye socket, a punctured lung, and teeth being knocked out, which resulted in his being in intensive care. He was in intensive care for nine days and in hospital for approximately three weeks (G22/171; G39/275-276; transcript/51). The Applicant said “not really, no” when asked if he suffered any ongoing effects from the assault (transcript/51). However, this appears to be somewhat of an under-estimation because the Applicant was awarded $28,000 in criminal injuries compensation for this incident, and after the payment of various costs, including medical costs, he has approximately $17,000 left which was in part to have his teeth fixed “because they kicked my teeth out” (transcript/51; 96).
A psychological assessment report dated 16 October 2015, prepared by Clinical Psychologist Ms Pearl Fernandes (G28/211), states that because of the Applicant’s “trauma related to the sexual violence he endured in his early years, and current predicament in the [immigration detention] he reported and presented with features characteristic of Depression, Post traumatic Stress Disorder (PTSD) and Anxiety”.
Although the Applicant may be able to access to the same medical benefits available to him as other citizens of the United Kingdom, I find that his complex medical needs (both with his physical and mental health) would be a substantial impediment to his removal. This is because of the seriousness of his conditions which will worsen with age, his need for daily medication and ongoing monitoring by medical specialists, the impact of his health on his ability to stand and walk, and his lack of any family or social supports who may be able to assist him to access medical and support services. His treatment for his heroin addiction is also likely to be detrimentally impacted if he is returned to the United Kingdom, whereas in Australia, the Applicant has a plan to engage with Next Step and to transition to suboxone to treat his heroin addiction. Given the Applicant’s age, criminal history, complex mental and physical health issues, and lack of social or family contacts in the United Kingdom, he is unlikely to be employable and may struggle to support himself. However, there is also insufficient evidence before me as to the extent to which the Applicant would have access to social security payments such as the aged pension, given that he has never worked in the United Kingdom, although generally he may have access to the same social and economic services as other citizens.
I note that the Applicant has $17,000 left in his bank account from his criminal injuries’ compensation claim. However, as I have mentioned above, this sum was set aside to pay for dental work required due to his assault. Further, the Applicant indicated he would give some of this money to his partner to help her. Any money that remains is unlikely to be enough to provide any meaningful assistance if the Applicant is returned to the United Kingdom. He also has a legal firm in Western Australia seeking further compensation for the sexual abuse he suffered, however, the claim is only in “the preliminary investigation stage” (A3). Thus, whether the Applicant will receive any compensation from this claim is uncertain.
Although there are no substantial language or cultural barriers that the Applicant would face if returned to the United Kingdom, being returned to an unfamiliar country after living in Australia for effectively his entire life, would be likely to result in practical, financial and emotional hardship for the Applicant. The Applicant does not have any family or any friends in the United Kingdom who could provide him with social or emotional support. As I have already mentioned, he would also be separated from his indigenous partner, his three surviving brothers, his son, grandchildren, great-nieces and nephews and extended family. His mental health is likely to further deteriorate if he is removed to an unfamiliar country as he will be permanently separated from his partner and family in Australia, and due to his age and health, it would be unlikely for him to see them again.
In her report Ms Fernandes also noted that the Applicant was concerned about the safety of his partner which “have added to his distress” (G28/211). Those concerns seem to have been realised because at the hearing the Applicant explained that his partner was sexually assaulted earlier this year. If he is removed to the United Kingdom, his worry about his partner and inability to help care for her is likely to further exacerbate the Applicant’s mental health conditions.
Overall, I find that the Applicant is likely to experience substantial hardship establishing himself and maintaining a basic standard of living if he were to return to the United Kingdom, and that these difficulties are likely to be insurmountable. Accordingly, I find that paragraph 9.2 of Direction No 90, being extent of impediments if removed, weighs very strongly in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 90)
Paragraph 9.3(1) of Direction No 90 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, this consideration is not relevant.
Links to the Australian Community (paras 9(1)(d) and 9.4 of Direction No 90)
Paragraph 9.4 of Direction No 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 to 9.4.2 below.
This requires consideration of the strength, nature and duration of an applicant’s ties to Australia and the impact of non-revocation of a cancellation decision on Australian business interests.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1(1) of Direction No 90 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Further, paragraph 9.4.1(2) of Direction No 90 provides that:
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has strong ties to Australia. He is now 66 years old and as I have mentioned above, he has effectively spent his entire life in Australia, having arrived here as an infant. He has never returned to the United Kingdom and has no family or social connections there.
The Applicant did not start offending shortly after arriving in Australia. However, he has a long history of offending which started when he was approximately 12 and a half years of age. The Applicant has previously worked as a panel beater and spray painter (G22/173). He volunteered at an old person’s home where his mother resided by giving the 22 residents haircuts approximately once a month. He also gave haircuts to his nephews when he was in the community and fixed bikes and cars for them. He had learnt how to cut hair from a barber during a five-year period in prison (transcript/67-68). However, his long history of offending and many periods of incarceration outweigh these positive contributions to the Australian community.
All the Applicant’s immediate family reside in Australia, including his long-term partner of approximately 29 years, who is an indigenous Australian citizen. If the Applicant is removed to the United Kingdom, she would not be able to relocate to the United Kingdom with him and so they would face permanent separation. In a letter dated 4 January 2021, the Applicant’s partner stated that “I very much love this man and would be devastated should he be deported” (G47/299). She wrote in another handwritten statement dated 25 March 2015 that she would be “badly affected” if the Applicant was removed from Australia, and that she is relying on the Applicant to help care for her. She described that she “occasionally get[s] suicidal” and has diabetes and leg ulcers (G26). As well as having health issues, as I mentioned above, the Applicant’s partner was sexually assaulted in early 2021 (G51/308; transcript/52). The Applicant’s partner stated that, “we want to look after each other and live together in our remaining years of life” (G26). The Applicant’s evidence was that he wants to find a home for his partner and himself and that he would use a small amount of the criminal injuries compensation money to help do so (transcript/82). In his revocation request form, the Applicant referred to his partner’s mental health issues (G22/162). I find that the Applicant’s partner would suffer financial and emotional detriment if he is removed to the United Kingdom. She is also in temporary accommodation awaiting priority public housing, and so if the Applicant can stay in Australia his compensation money may assist them to find more stable accommodation. If he is removed to the United Kingdom, the Applicant’s partner is also likely to suffer practically and physically because she and the Applicant will not be able to help care for each other.

The Applicant also has a very large extended family in Australia consisting of three surviving brothers, one son and many nieces and nephews (G22/166-169; G40/283). As I have mentioned above, he has a granddaughter, I, a step-granddaughter, O, and a very large extended family including nieces and nephews and great-great nieces and nephews (including the minor children L and C). The Applicant’s brother, D, and sister-in-law wrote letters of support for the Applicant, both dated 15 May 2020. In D’s letter, he expresses concerns that deportation will be detrimental to the Applicant’s health and that he is concerned the Applicant may harm himself (G40/283; G41/284). The Applicant’s niece, FH, who regards the Applicant as the “closest thing [she has] to a father” (G42/285), also wrote letters of support (G42; G46). There was some discrepancy as to whether FH was a close friend, or the Applicant’s niece, but I accept the Applicant’s evidence that FH is his niece. I find that the Applicant’s immediate and extended family members in Australia are indicative of his close ties, and that they would suffer some emotional detriment if he is removed from Australia due to their concerns for his wellbeing and the likelihood that they will not see him again.
In summary, the Applicant’s ties to Australia are very strong. He has lived in Australia since he was an infant and has never returned to the United Kingdom. All his immediate and extended family members are in Australia, several of whom would be detrimentally affected if he were to be removed, including his brother D, his niece FH and most particularly his partner of 29 years who is an Indigenous woman with physical and mental health issues, who is experiencing housing insecurity whilst recovering from a sexual assault. I therefore find that paragraph 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
Child sexual abuse
The list of other considerations in paragraph 9 of Direction No 90 is not exhaustive, and there may be additional other considerations that are relevant for a decision-maker to consider. Both parties agree, as do I, that the institutionalised sexual abuse suffered by the Applicant at the hands of the Christian Brothers and also when he was a ward of the State of Western Australia is relevant to this application and should be considered as a separate other consideration.
I heard detailed evidence at the hearing of the exact nature of the sexual abuse perpetrated upon the Applicant when he was a child. He was first abused in a Catholic run school by Christian Brothers’ priests (Castledare Boys’ Home) for a four-month period when he was eight years old. He ran away from this school and was subsequently placed in the Clontarf Boys’ Home where he was abused by Catholic priests who were also part of the Congregation of Christian Brothers. The abuse occurred approximately twice a week for a six-month period until he ran away again. He then went home to his parents where he was enrolled in the local school, but due to truancy and misbehaviour, he was sent to the state-run Riverbank Reformatory from the age of approximately 13 or 14 years. At Riverbank, he was abused by a male officer, S, who was meant to be caring for the children there, initially for a three-month period. Overall, the Applicant recalled being sent back to Riverbank several times, experiencing abuse during at least three of the periods he was there.
The Applicant recalls leaving Riverbank and working in an industrial suburb in Perth, and that during that time he had to appear before an inquisitorial panel in Murray Street Perth. He thought the panel was comprised of people from the Child Welfare Department who were investigating whether S and another officer had been abusing boys at Riverbank. However, he was subsequently sent back to Riverbank where S continued to abuse him, as did another officer, T. The Applicant recalled that T abused him during two of the periods that he was at Riverbank.
The abuse was so severe that when the Applicant found himself in trouble with the law again (committing the offences of stealing and unlawfully using a motor vehicle), he asked the Children’s Court Magistrate not to send him back to Riverbank because “they force me to have sex with them” (transcript/29). The Applicant asked the Magistrate to send him to prison instead. The Applicant recalled that the Magistrate stated that he was not willing to send the Applicant back to Riverbank if he was being abused there. The Applicant was sentenced to six months imprisonment on 8 February 1972 (R2/100) which he served in Fremantle Prison. At the time of sentencing, the Applicant was 16 years and nine months of age. He returned to Riverbank again when he was released from prison at age 17 where S tried to abuse him again. However, the Applicant told S that if he came to the Applicant’s room and tried to abuse him again, “I’d do something about it with my family” (transcript/28).
During his evidence, the Applicant bravely described the exact nature of the abuse in detail (transcript/21-37). There is no doubt that the Applicant was abused as a child whilst in the care of the State of Western Australia and the fact of the abuse was accepted by the Respondent. I also commend Mr Beetham for a very focussed and sensitive cross-examination of the Applicant, following the examination in chief where the Applicant gave detailed evidence of his abuse. It is not necessary or appropriate for me to describe the nature of the abuse in these reasons any further than to say it was abhorrent and persistent abuse perpetrated against the Applicant by several abusers in gross abuse of their positions of trust. Indeed, in assessing the Applicant’s entitlement to an ex-gratia payment under the Redress WA scheme for the “abuse, neglect and pain and suffering” he experienced at Riverbank (G30/220-225), the Senior Redress Officer’s assessment described the abuse suffered by the Applicant as being “in the severe range” (G30/222).
In a written statement (A1), the Applicant said, “I have lived with [this] abuse all my life, there no one day passed without thinking about it”. Clinical Psychologist, Ms Fernandes, also wrote in her 16 October 2015 report that the Applicant had recurrent thoughts about his abuse which he has no control over, has sleep difficulties and nightmares due to the trauma he experienced as a child (G28/208-209). As I detailed above in my consideration of the risk to the Australian community, the Applicant’s descent into alcohol and drug abuse, which has persisted throughout his life, was so that he could attempt to forget the abuse and cope with the other negative consequences of the abuse including confusion about his sexuality, difficulty having relationships with women and post-traumatic stress disorder.
The duration, severity and persistence of the abuse of the Applicant over many years and involving many perpetrators who were in positions of trust, including state sanctioned positions of trust, resulted in there being little to no chance of his leading a normal, law abiding and drug-free life. This was recognised by the sentencing Magistrate who observed that the trauma of the sexual abuse perpetrated against the Applicant when he was a child has undoubtedly “followed [the Applicant] throughout [his] life and no doubt contributed to the fact that [the Applicant has] spent a significant period of time in custody” (G7/37). Accordingly, I find that the childhood sexual abuse experienced by the Applicant “diminishes the criminal responsibility of the Applicant for the entirety of his offending” (see Senior Member Griffin QC in GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4362 at [94]). The horrific sexual abuse perpetrated upon the Applicant when he was a child in the care of the Christian Brothers’ and subsequently the State of Western Australia by persons in positions of trust diminishes the Applicant’s criminal responsibility and provides substantial justification to the Applicant being permitted to stay in Australia.
I therefore find that this other consideration weighs very strongly in favour of revocation of the Cancellation Decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
In relation to the protection of the Australian community, I found:
(a)the nature and seriousness of the Applicant’s offending conduct weighs strongly against the revocation of the Cancellation Decision; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct weighs moderately against the revocation of the Cancellation Decision.
Overall, I concluded that the protection of the Australian community primary consideration weighed moderately to strongly against the revocation of the Cancellation Decision.
With respect to the remaining primary considerations, I made the following findings:
(a)the family violence primary consideration was not applicable;
(b)the best interests of the minor children L, I and O, weighed moderately, and the best interests of C weighed slightly, in favour of the revocation of the Cancellation Decision; and
(c)the expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations:
(a)considerations of international non-refoulement and impact on victims did not arise on the material before me;
(b)the extent of impediments if removed weighed very strongly in favour of the revocation of the Cancellation Decision;
(c)the Applicant’s links to the Australian community, particularly the strength, nature and duration of his ties to Australia, weighed strongly in favour of the revocation of the Cancellation Decision. The impact on Australian business interests did not arise on the material before me; and
(d)the sexual abuse perpetrated against the Applicant when he was a child weighed very strongly in favour of revocation of the Cancellation Decision.
Although primary considerations are generally to be given greater weight (paragraph 7(2) of Direction No 90), they are not hierarchical and other considerations can outweigh primary considerations.
Despite two of the primary considerations (the protection of the Australian community and the expectations of the Australian community) weighing moderately to strongly and moderately against revocation of the Cancellation Decision, I find that they are outweighed by the primary and other considerations that weigh in favour of revocation of the Cancellation Decision. These are the:
(a)the best interests of minor children primary consideration, which weighed moderately (for L, I and O) and slightly (for C) in favour of revocation of the Cancellation Decision;
(b)the extent of impediments if removed consideration, which weighed very strongly in favour of the revocation of the Cancellation Decision;
(c)the links to the Australian community consideration, which weighed strongly in favour of the revocation of the Cancellation Decision; and
(d)the child sexual abuse other consideration, which weighed very strongly in favour of revocation of the Cancellation Decision.
After weighing all the relevant primary considerations and the relevant other considerations, I find that there is another reason why the Cancellation Decision should be revoked. I therefore find that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 154 (one hundred and fifty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...[SGD]....................................................................
Associate
Dated: 31 December 2021

Date of hearing: 9 and 10 December 2021

Representative for the Applicant: Mr A O'Donoghue

Representative for the Respondent: Mr C Beetham instructed by Mr A Shinnick, Minter Ellison Lawyers

[2021] AATA 4823

31 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Appeal

Date of hearing:	9 and 10 December 2021
Representative for the Applicant:	Mr A O'Donoghue
Representative for the Respondent:	Mr C Beetham instructed by Mr A Shinnick, Minter Ellison Lawyers