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

[2020] AATA 418

XZJP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 418 (6 March 2020)

Division:GENERAL DIVISION

File Number:          2017/5132

Re:XZJP

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:6 March 2020

Place:Melbourne

The decision under review, being the decision of the Respondent dated 21 August 2017 not to revoke the mandatory cancellation of the Applicant’s Class BB (Residence) Subclass 155 (Five Year Resident Return) visa pursuant to section 501(3A) of the Migration Act 1958, is set aside.

In substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(4)(b)(ii) of the Act.

..........[sgd]..............................................................

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Resident Return visa – applicant is citizen of Colombia – background to offending – ministerial direction No. 79 – primary considerations – protection of the Australian community – the nature and seriousness of the applicant’s conduct – the risk to the Australian community should applicant commit further offences or engage in other serious conduct – expectations of Australian community – non-refoulement obligations – strength, nature and duration of ties to Australia – extent of impediments if returned to country of reference – evidence of applicant having significant cognitive deficiency - decision under review set aside and new decision substituted

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 35

Migration Act 1958 (Cth), ss 499, 501, 501CA

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48
Minister for Home Affairs v HSKJ [2018] FCAFC 217

Muldrock v The Queen [2011] HCA 39

Secondary Materials

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature on 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature on 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees, 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
DFAT Country Information Report – The Philippines – 21 December 2018 (Department of Foreign Affairs and Trade)
International Covenant on Civil and Political Rights, opened for signature on 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Migration Act 1958 – Direction No. 65 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 23 December 2014; revoked 28 February 2019)
Migration Act 1958 – Direction No. 75 – direction under s 499 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Commenced 6 September 2017)
Migration Act 1958 – Direction No. 79 – direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)

Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, adopted and proclaimed by UN General Assembly on 15 December 1989, A/RES/44/128 (entered into force 11 July 1991)

REASONS FOR DECISION

Senior Member D. J. Morris

6 March 2020

1. On 9 February 2019 the Tribunal made an order under s 35 of the Administrative AppealsTribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant in these written reasons, or any information which may tend to identify him. The Applicant is assigned the anonym “XZJP.”

2. XZJP is a citizen of Colombia, born in 1961.  He arrived in Australia in 1982.  He has lived in Australia since that time, but has returned to Colombia on three occasions.  XZJP overstayed the first visa he received but his counsel submitted that in the late 1980s he applied for a permanent entry visa during an amnesty offered to persons who had overstayed their visas. That was corroborated by a note from the Department of Home Affairs (the Department) in the papers before the Tribunal.  XZJP was granted a permanent entry visa in around 1987.  In 2007 XZJP was granted a Class BB Subclass 155 (Five-year Resident Return) visa.

3. On 3 February 2017 a delegate of the Respondent cancelled XZJP’s visa under section 501(3A) of the Migration Act 1958 (the Act). On 15 February 2017 XZJP made representations to the Department requesting revocation of the mandatory cancellation of the visa under section 501CA of the Act. On 21 August 2017 a delegate of the Respondent decided not to revoke the mandatory cancellation of the visa.

4. XZJP sought review of that decision by the Tribunal.  On 30 October 2017, the Tribunal (differently constituted) conducted a hearing and that day gave an oral decision affirming the decision under review.  The Applicant applied to the Federal Court of Australia for judicial review of the Tribunal’s decision.  On 23 April 2019 the Court issued a consent order quashing the Tribunal’s decision and remitting the matter for a fresh hearing.

5. The Tribunal conducted the hearing on 7 and 8 October 2019.  The Applicant was represented by Mr Greg Hughan, of counsel, instructed by Mr Attila Mete, solicitor.  The Respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers. Although XZJP generally responded in English, the Tribunal appreciates the assistance provided by an interpreter in the Spanish language.  Three witnesses gave evidence on behalf of the Applicant.

6. The Tribunal accepted into evidence the following documents:

   ·     a statement of XZJP dated 19 September 2019 (Exhibit A1);

   ·     a statement of ‘AG’ dated 19 September 2019 (Exhibit A2); a statement of ‘AV’ dated 22 August 2017 (Exhibit A3);

   ·     UNHCR Guidance Notes on  Refugee Claims Relating to Victims of Organised Gangs – March 2010 (Exhibit A4);

   ·     UNHCR Eligibility Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Colombia – September 2015 (Exhibit A5);

   ·     a volume of ‘G’ documents (‘GD’) collated by the Respondent (Exhibit R1); and

   ·     a volume of supplementary ‘G’ documents (‘SGD’) also collated by the Respondent (Exhibit R2).

   The legislative framework

7. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or the Minister’s delegate) must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of section 501(6)(a) of the Act, and under section 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.

8. Section 501CA(4) of the Act provides that a decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b)(ii) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent conceded that XZJP had made representations within the prescribed period.

9. If the Tribunal finds that XZJP fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In undertaking this task, the decision-maker should examine the factors for and against revoking the cancellation and if satisfied that the cancellation should be revoked, the decision-maker must act on that view (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).

   Evidence in relation to the character test

10. The Tribunal had before it a National Police Certificate (GD, p 21) dated 29 July 2016.  This certificate stated that in 2015 in a New South Wales court, XZJP was convicted of the offence of Attempt possess marketable quantity imported border controlled drug/plant.  He was sentenced to 3 years’ imprisonment to be released after serving 1 year and 9 months on recognizance of $500 and to be of good behaviour. The Applicant’s counsel conceded in his written submissions that XZJP did not pass the character test.

    Finding in relation to the character test

11. On the basis of this evidence, and because of the operation of section 501(6)(a) on the basis of 501(7)(c) of the Act, the Tribunal finds that XZJP fails the character test in section 501(3A) of the Act.

12. The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.

    Direction No. 79

13. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. At the time of the reviewable decision not to revoke the cancellation of XZJP’s visa (the ‘reviewable decision’), the decision-maker consulted a direction the then Minister had made, Direction No. 65. That direction was superseded on 28 February 2019 when a new direction, Direction No. 79 (‘the Direction’) commenced. There are no accrued rights, so the Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.

14. Paragraph 6.1 of the Direction states, in part:

    6.1Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (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 his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

15. The Direction includes the following principles at paragraph 6.3:

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

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

16. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’  Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’

17. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.

    The Applicant’s offending

18. Before the Tribunal were the sentencing remarks of the sentencing judge from 2015.  The judge recorded that XZJP had pleaded guilty to one count of attempting to possess a marketable quantity of a border controlled drug, namely 93 grams of cocaine

19. The agreed facts put forward by the prosecution set out that XZJP booked a room at a Sydney backpacker hostel.  On the day he booked the room, XZJP telephoned the hostel to say that he was expecting some mail.  His telephone calls were lawfully intercepted.  Later that morning XZJP went to the hostel, checked his reservation and told the receptionist he would be returning that afternoon.  He then telephoned another person, Mr ‘HC’ (who was separately convicted in relation to importation of the cocaine), and told him that he had booked the room.  Over the next two days, XZJP made six further telephone calls and four further visits to the hostel to check for the delivery of a parcel.  He made other telephone calls to Mr HC speaking in what the judge described as “coded terms” about the expected receipt of the drugs.

20. Another telephone call to XZJP was intercepted, from a female, asking him for “one small ounce for this weekend.”  Another person, a male, had a further telephone discussion which the judge said appeared to relate to the issue of obtaining drugs.

21. Two days after XZJP booked the hostel room, the Australian Federal Police attended the office of an international courier company in Sydney and seized a parcel addressed to XZJP, said to have been sent from a motorcycle dealership in Massachusetts.  Within the parcel was a lead-lined metal cylinder containing a substance which later testing showed to be 64 grams of pure cocaine.

22. XZJP made four telephone calls to Australia Post seeking the whereabouts of the parcel he was expecting.  He also spoke to the female referred to earlier and complained about the parcel having been sent to the wrong address.  XZJP then made another booking at a different backpacker hostel.  The following day Australian Federal Police officers attended a suburban post office in Sydney and seized another parcel addressed to XZJP at the second hostel.  Examination revealed a similar lead-lined cylinder containing what turned out, on scientific testing, to be 28 grams of pure cocaine.

23. Later that day, XZJP attended the post office and attempted to collect the parcel, presenting his passport and a business card.  A short time later he was arrested by police officers.  Later that day Mr HC was arrested at the residence he shared with XZJP.  In Mr HC’s bedroom, the police found a note with the address of the first backpacker hostel, some digital scales, and two bags containing a crystalline substance.  In the common areas of the residence police found several clip seal plastic bags on top of a cupboard and above a water heater, and some Western Union and money transfer documents lying around.

24. XZJP participated in police interviews.  He said that his flatmate Mr HC had organised both parcels and that he agreed to collect them as a favour for Mr HC who would be working or studying and could not therefore pick them up himself.  XZJP told the police that he thought the parcels would contain motorcycle parts, and did not know what Mr HC planned to do with the packages or that there were drugs inside.  The judge stated that XZJP’s plea of guilty contravened this statement, at least in his knowledge of what was inside the parcels. The judge inferred that, as he resided with Mr HC, XZJP also knew that Mr HC either intended or had taken part in the supply of drugs to others.

25. XZJP also told the police that he had sent $5,000 to persons in Colombia on two occasions on behalf of Mr HC. On each occasion Mr HC had handed over cash to be sent through Western Union.  Documents found by police at the residence indicated that XZJP had transferred something in excess of $17,500 to Colombia.

26. The judge recorded that, after his separate arrest, Mr HC had made certain admissions.  Mr HC agreed that he had deliberately imported the cocaine on two occasions through parcels addressed to his flatmate, XZJP.  He said he had arranged for XZJP to pick up the second parcel and that XZJP was aware that the package contained cocaine and that he was to be paid by Mr HC for picking up the parcel.  Mr HC told the police he intended to divide the drug into single grams and sell it for $130 per gram.

27. The agreed value of the cocaine at street value was just under $34,700; the wholesale value was $19,000.

28. The judge referred to prior offending by XZJP between February 1987 and October 2008 which related to low range drink-driving, larceny, other driving offences, assaulting a police officer and malicious damage, all having been dealt with by fines or bonds and community service orders.

29. In terms of the nature and circumstances of the offence, the judge found that the agreed facts showed that XZJP was aware of Mr HC’s intended supply of the drug, “in other words, he was facilitating the principal.” The judge went on to say that he accepted that the Applicant played an essential part in the receipt of the imported drugs.  After discussing Mr HC’s admissions that he gave instructions to XZJP and that he, Mr HC, was to be the ultimate recipient of the drugs, the judge went on to accept that XZJP was what he termed a ‘low level but necessary’ part of the operation to successfully import and receive illicit drugs.  The judge concluded that XZJP was motivated partly by some desire for financial gain (of an amount not known) but also inferred on the material before the Court that the Applicant was also motivated by loyalty or his relationship with his flatmate co-offender (i.e. Mr HC).

    ORAL EVIDENCE

    XZJP

1. XZJP gave evidence that his parents are deceased.  He was brought up in impecunious circumstances in Colombia by an aunt who has since died. He has a sister who still lives in the Colombian town where they grew up.  He said his sister lives in a small room with her son and was angry with him for his offending and had told him that she would not help him if he returned to Colombia.  In terms of other family in Colombia, XZJP said that he has an elderly aunt living there.

2. In terms of other family members outside Colombia, XZJP said he has a brother who lives in the United States.  He has a cousin who lives on the Gold Coast in Australia with whom he speaks every day by phone.

3. XZJP said that he came to Australia aged 21.  He said that before 2015 he had various jobs working for cleaning companies, but did have periods of unemployment and was on social security benefits for periods while also undertaking some casual work.

4. XZJP was taken through some earlier offending which is recorded in the National Police Certificate.  In terms of a low range drink driving offence in 1987 he said he did not remember the details.  In respect of 1996 offences for driving unlicensed, speeding and giving a false name and address, XZJP said his licence had been cancelled, he needed to drive to work, and that when he was pulled over by the police he became scared and gave a false name to avoid “more problems”.  In respect of a 1998 conviction for assaulting an officer in execution of duty, XZJP said he threw his mobile phone at the officer.

5. In response to direct questions from the Tribunal about a number of driving charges, XZJP said he had a Colombian driver licence and obtained a NSW driver licence when he arrived in Australia but it was cancelled and he didn’t ever bother to renew it, which led to future convictions for unlicensed driving.

6. In respect of a group of offences for which he was convicted in 2006, including the offence of destroy or damage property, and the offence of wilful and obscene exposure near public place or school, XZJP said the circumstances were as follows.  He was living in a boarding house and behind on his rent.  One evening the landlord came into his room while he was sleeping in bed.  He was unclothed.  XZJP said he knew that the landlord wanted money for the rent, so he jumped out the first-floor window, breaking a timber awning in the process.  He said he then ran up the street.  Police who happened to be present chased after him.  He hid in a park behind an electricity box.  XZJP said that police sprayed him in the face and arrested him.  He said he pleaded guilty and spent one week in gaol. 

7. XZJP said he complied with a probation order imposed upon him and learned to pay his rent at the right time and not to assault police. He said that he undertook 300 hours of community service cutting lawns, cleaning houses for the Salvation Army and sorting donated clothes. XZJP said that he had ceased driving since 2008 and since then got around using public transport or obtaining lifts with friends. 

8. In terms of direct family, XZJP said that while he was completing his probation order he learned that his late mother was ill in Colombia, so he sought permission from the probation authorities to return there for three months to see her.  He resumed and completed the order when he came back to Australia.

9. XZJP said that in 2007 he married a Colombian woman in Sydney whom he sponsored to immigrate to Australia.  He said that after around four years, his wife became homesick and returned to Colombia, effectively ending the marriage.  He said that he remained on good terms with his estranged wife.  In answer to a direct question, he told the Tribunal that they had never formally divorced.

10. XZJP said that he lived with Mr HC for about a year before the offending which led to his conviction for attempting to obtain possession of drugs.  He met Mr HC through a mutual friend.  Initially Mr HC and his girlfriend shared the house with XZJP, but the girlfriend moved out. 

11. XZJP said that Mr HC asked him to do a favour to pick up a parcel which he told him contained motorcycle parts, and that one day when he was waiting at the post office to collect the parcel, Mr HC rang him and told him that the package actually contained drugs.  XZJP nevertheless went ahead and collected the packages.  He was immediately arrested.

12. XZJP said that after he had appeared in Court, but while he was on bail pending sentencing, he was contacted on two occasions on his phone.  He said the male caller, who he did not recognise, said to him “Bloody dog, you talk about [HC], I will kill you.”  He said the person also said that he knows XZJP’s family is in Colombia.

13. XZJP said that one week later he received another call from a male, but he did not know whether it was the same person.  He said on this occasion the caller said “If you are going to Colombia, I’m going to kill you.”

14. Noting that these calls were in 2014, XZJP said he was worried about people in Colombia because “they do not forget these things.”  XZJP said that he didn’t know the current whereabouts of Mr HC. He had not spoken to him and didn’t know if Mr HC had returned to Colombia.  He said that Mr HC comes from the same town as he did in Colombia.

15. Under cross-examination, XZJP said that he had a strained relationship with his sister who lives in Colombia.  He said that it was not long ago that he had started talking to her again, “maybe two or three weeks ago” (i.e. around September 2019).

16. Mr Orchard drew the Applicant’s attention to the judge’s remarks that he and Mr HC were speaking on intercepted telephone calls “in coded terms” about drugs.  XZJP said that it was not true and they were talking about motorcycle parts, but the police decided they were talking about drugs.  XZJP was asked about the female caller to him who asked for “one small ounce for this weekend.” He said that the caller was asking him about buying some cleaning products (soap powder), which he said he used to buy in bulk to on-sell.

17. XZJP said he agreed that he ran errands for Mr HC but asserted that he didn’t know Mr HC was dealing in drugs.  He agreed that he sent some money to Columbia for Mr HC but said the money was “from his work.”  XZJP said that Mr HC worked cleaning and painting.

18. In terms of going to the post office to collect the package, XZJP said that he had received a card from the post office that morning at the hostel where he had booked a room advising that there was a parcel awaiting collection.  He said that Mr HC asked him to pick it up because he had a permanent visa, but Mr HC only had a student visa.

19. Mr Orchard put to XZJP that he was motivated by the desire for financial gain in agreeing to accept the parcel, but the Applicant responded that Mr HC “never said he was going to pay anything to me because they were motorbike parts.”

20. XZJP agreed that he had been unemployed in the time leading up to his arrest, and that he had a gambling problem which had led to financial difficulties.

21. XZJP was asked if he remembered being declared an habitual offender in terms of his driving record, and said he did recall that which is why he decided to stop driving.  XZJP conceded he was declared an habitual offender in 2006 but went on to commit a further driving offence in 2008 before he stopped driving for good.

22. Asked about his conduct in detention, XZJP conceded that there had been some violent altercations and that he had disputes on occasions with other detainees, sometimes because of stress.  He was asked about an incident involving a female guard, but said he only touched her on the hand when they were discussing a document, and denied touching her on her leg.

23. XZJP said he had never used cocaine.  In terms of the two threatening phone calls he said he received, the Applicant said he discussed them with the police at the time but agreed that no one could corroborate that the calls had been received because he had a prepaid phone which the police had confiscated.

24. In answer to a direct question as to why he thought the callers were Colombians, XZJP said he didn’t know where they were calling from. They spoke in Spanish and could have been calling from anywhere in Central America or the United States.

25. In terms of his estranged wife, XZJP said that while they remained on good terms, she now has a new partner and did not believe she could offer him any support if he is repatriated.  He told the Tribunal that she had three children when they married, two boys, and a girl who is now an adult and lives in Melbourne.

    Ms AG

26. Ms AG gave evidence that she knows the Applicant through her parents.  She said she has known him for a long period and that XZJP helped her parents obtain employment when they came to Australia.

27. Ms AG said she was prepared to assist XZJP if he is allowed to stay in Australia with temporary accommodation and to find somewhere permanent to live.  She said her father is a house painter who has plenty of work and would be able to provide employment for XZJP for a period.

28. Ms AG said she was born in Colombia and came to Australia forty years ago, aged five.  In terms of her assessment of XZJP’s intelligence, she said that “he speaks normally but is better at physical work than office work.”

29. Ms AG said that she had visited XZJP when he was in prison in Sydney and then in Goulburn.  Ms AG said that she was aware that the Applicant had a cousin in Queensland but was unaware that he had a sister in Colombia.  She knew that his estranged wife had returned to live in Colombia.

    Mr AV

30. Mr AV gave evidence that XZJP was his cousin. They are close in age.  Mr AV said that he immigrated to Australia in 1979.  He said that he knew XZJP was raised by his aunt and considered him a hard worker, but that he “thinks everyone is nice”.  He said he thought that XZJP was “a bit slow, a bit excitable.  Talks too fast and sometimes asks the same question.”

31. Mr AV said that he had been in regular contact with XZJP both when he has been in prison and then in immigration detention and that he sometimes sent him small amounts of financial assistance.  He said that he was prepared to provide assistance to XZJP if he stayed in Australia on the condition that he proves that he is going to change his behaviour.

32. Mr AV said that his opinion was that it would be risky if XZJP was returned to Colombia because “if someone finds out he is there, they would kill him.”

    Mr AP

33. Mr AP gave evidence that he has known XZJP since 1982 when he first visited Australia.  Mr AP said he was visiting on that occasion as a tourist but in 1990 returned as a resident with his family.

34. Mr AP said that he has a business doing house painting and window cleaning.  He had in the past worked with XZJP on average around two or three times a month, and found that he was a good worker who really likes to help others.  Mr AP said that he would be able to offer employment, at least on a temporary basis, to XZJP if he was allowed to remain in Australia.

    Closing submissions

35. Counsel for the Applicant said that XZJP was a relatively simple person who was not sophisticated.  He said that he had given evidence to the best of his ability and had tried to be truthful, but that his memory is not always reliable.

36. Mr Hughan noted that XZJP pleaded guilty to the main charge and that the package, apart from containing cocaine, also did actually contain motorcycle parts.  Mr Hughan said that the Tribunal should accept that the Applicant knew that there were drugs in the package.

37. He noted that the judge found that XZJP was easily influenced but cited the fact that he gave up driving in 2008 after a string of motoring offences which illustrated that he was capable of changing his behaviour.

38. Counsel also submitted that the sentencing judge imposed a relatively modest sentence and took the view that the prospects of XZJP being rehabilitated were good, so his prospects of re-offending were very low.

39. Mr Hughan said that XZJP’s offending was out of character and that he was not the principal involved in the attempted drug importation, as the judge observed.

40. Mr Hughan said that the Tribunal should engage with the fact that XZJP’s fears on return are reasonable fears. He referred to the two threatening telephone calls XZJP says he received at the time of his appearance in Court in 2014, the evidence of Ms AG and Mr AV, who both referred to the volatile situation in Colombia, and the possibility that it could be perceived that Mr HC went to gaol because XZJP informed on him.

41. Mr Orchard said that the Minister submits that the relevant considerations in the Direction weigh heavily against XZJP.  He said that the Court found that his actions formed a necessary part of the importation of the cocaine and that the Applicant knew that it was cocaine that was coming in the packages.

42. Mr Orchard pointed out that the evidence of XZJP was that he received a phone call from Mr HC at the post office prior to collecting the package, but that he went ahead anyway, and that it should not be concluded he did not know what was in the parcel.

43. In terms of the call from the female asking for a “small ounce for the weekend,” Mr Orchard said the suggestion that this related to cleaning products is blatantly implausible.

44. The Respondent conceded that the sentencing judge was of the view that XZJP’s prospects of rehabilitation were “modestly optimistic.”

    CONSIDERATION OF THE DIRECTION

    Protection of the Australian community (paragraph 13.1)

45. The Direction requires the Tribunal to examine the nature and seriousness of the person’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

46. The Tribunal decides to focus on the attempted possession of drugs offence.  The reason for this is that the other offending by the Applicant has been, as the judge remarked, of a relatively low level.  That is not to say that it should be disregarded, but there is some evidence that XZJP did modify his behaviour by stopping driving and the facts of the  offence of assaulting police appears to relate to one instance of him throwing his mobile phone at an officer, but missing.  The Magistrate imposed a lenient sentence for this offence, a penalty only applying until the rising of the Court.

47. In terms of the 2016 offences precipitated by his landlord coming into his room late at night, the Tribunal regards them as, together, somewhat disproportionate to the facts of what took place.  The circumstances are important.  The police were factually correct to have preferred a charge for wilful and obscene exposure.  This was a case where the Applicant had been in bed, asleep, when he was disturbed in the night.  He was foolish to have jumped out of the window, thereby causing damage to the awning, but the circumstances of him being naked and chased up the street and then sprayed with OC spray by officers and arrested should properly be seen in relation to the antecedent. 

48. In relation to the conviction on 31 July 2015, there is no doubt to the Tribunal that this is a serious offence.  XZJP was facilitating the import of an illicit drug, and one that, had it entered the market on the streets of Sydney, would have axiomatically caused harm. 

49. It may be concluded that, to some extent, advantage was taken of XZJP by Mr HC.  He was directed, as the judge found, by Mr HC to book the two rooms at the backpacker hostels and to go to the post office to pick up the parcel containing the cocaine.  The Tribunal does not accept any suggestion in what was somewhat confused evidence by XZJP that he did not know, when he sought to collect the parcel that day, that he was collecting a parcel containing cocaine.  It is perhaps a stark illustration of how naïve XZJP was that, when he was asked directly by the Tribunal (having given evidence that he took a phone call from Mr HC after he entered the post office but before he presented at the counter with the ‘mail to collect notice’, and was told it was drugs), why he didn’t simply then just leave the post office.  XZJP’s response was that he decided, nevertheless, to collect the package “because it had my name on it.”

50. In addition, the Tribunal does not accept the evidence of XZJP that the phone call from the unknown female asking him for “one ounce” related to cleaning products.  It would seem that it probably related to drugs. However, it must be noted that the mobile phone XZJP was using at that time had been given to him by Mr HC, so it is possible that the caller thought she was dealing with him.  It is certainly clear, from Mr HC’s admissions to the police as recorded by the sentencing judge, that all of the drugs were intended for Mr HC and that Mr HC was the principal in this offending.

51. While, on a search of the residence XZJP and Mr HC shared the drug dealing paraphernalia was almost all found in Mr HC’s bedroom, the fact that a large number of zip seal bags was found in the common areas of the house inclines me to the conclusion that XZJP knew that Mr HC was dealing in drugs.  I do not find XZJP’s evidence that he thought the $17,500 he had transferred on behalf of Mr HC to Colombia was proceeds from “painting work” is plausible.

52. In terms of the Direction, the Tribunal characterises this offence as relating to vulnerable persons, because persons addicted to illicit drugs, which they obtain illegally and sometimes at great expense, are obviously in this category.  In terms of the other relevant parts of paragraph 13.1.1, the sentence imposed was, within the range of tariffs available, relatively light. While there is some cumulative effect of XZJP’s repeated offending, there has not been an escalation in seriousness.  There was no pattern of other drug offences of this nature.  In fact, apart from drink driving offences, this is the only offence relating to drugs.

53. The Direction requires the Tribunal to examine the nature of harm to individuals or the community should the person engage in further criminal or other conduct.  Should XZJP engage in similar criminal conduct, the nature of the harm is obvious and would be serious.  It would facilitate the illicit distribution into the market of a damaging, habit-forming, drug.

54. The Tribunal had before it (GD, p 68) a psychological report from Ms Michelle Player, clinical psychologist, dated 23 July 2015.  Ms Player examined XZJP on 20 July 2015 with the assistance of a Spanish interpreter.  In terms of a cognitive assessment of XZJP, Ms Player wrote:

    As [XZJP] has limited English language skills, only his non-verbal, perceptual reasoning capacity was assessed; with two subtests being administered.  On this domain, he performed with Extremely Low to Borderline range of cognitive ability, performing in the bottom 1% of the normative sample for his age.  He impresses with limited non-verbal intellectual skills.  This suggests that [XZJP] has only functional daily living skills and that he likely struggles with managing complex life management tasks.

55. Ms Player went on to write:

    Nonetheless, he reveals a solid employment history since he has achieved working age, both in Colombia and in Australia. [He] denied any history of illicit drug use, alcohol dependence, or serious mental illness.  However he presents as a man who is vulnerable to lowering of mood and poor coping at times of stress; which seems best understood as a function of his limited intellect.  [XZJP] does not reveal any entrenched antisocial attitudes or involvement with antisocial peers.  Nonetheless, his low non-verbal cognitive capacity may render him vulnerable to the negative influence of others.

56. The sentencing judge refers to Ms Player’s report in his sentencing remarks.  He also states:

    Most significantly, Mr Fraser [counsel for XZJP] has correctly drawn attention of the Court to the comments by the High Court in Muldrock as to the proper way to have regard, in a sense, in the exercise to those persons with intellectual disabilities.  He has referred to Muldrock v The Queen [2011] HCA 39, in which the sentencing judge, Black J, as his Honour then was, had before him an offender with a mild intellectual disability and took that matter into account in ameliorating the sentence that would otherwise apply.

    I accept Mr Fraser’s summary of that case in his penultimate paragraphs of the written submission that mitigation features that may arise due to intellectual disabilities apply to this offender.  I accept that that is so.  His low intelligence directly contributed to the offence, in that he was vulnerable to the influence of persons such as [Mr HC] and his low intelligence also likely limited his capacity to reason in relation to his conduct.  I am not necessarily convinced of the latter statement, it may well have had some effect, however in my view that the earlier statement speaking of the vulnerability to influence, in my view, has significant force.

    […]

    I have referred to the harm occasioned by the fact that these drugs were intercepted prior to getting out to users.  I have also referred to the assistance that he has provided and also his ultimate plea of guilty.  In my view, there is good reason to say that ultimately he has been contrite, as evidenced by both his assistance and his plea of guilty and that that contriteness is genuine.

    […]

    I consider that it is correct to categorise the offender’s conduct as that of a lower level person in such hierarchy, as the evidence discloses, who was deliberately put forward to take the majority of the risk.  That is not to say that he did not know what he was doing, nor is it to say that what he did was in some manner excused as being innocuous, it was not and it is not.

1. The Tribunal cannot go behind the findings of the Court.  As the judge refers to Ms Player’s psychological assessment in his remarks (GD, p 31), it would seem his Honour took into account that XZJP has a diagnosed cognitive impairment and that a feature of this impairment is that he is vulnerable to the influence of others, in this case a negative influence of Mr HC.  To the extent that factor in XZJP’s character is canvassed in the evidence of other witnesses at this hearing, a common feature was the proffered view that XZJP was always trying to help people and was willing to please.  Mr AV wrote (Exhibit A3):

   [XZJP] is very simple, really a bit slow mentally.  My wife often said she thought he had some mental problems.  He is easily influenced by others.  He would always help anyone who asked him, without thinking of whether the person was good or bad.  Other people would often take advantage of him.  For example, he had a unit in [name of suburb redacted], but several young students, about 20 yo, moved in with him.  He was helping them, but they were no good.  They weren’t paying rent or helping him in any way.

2. It would seem to the Tribunal that, on balance, while there is a risk of re-offending, it is very unlikely that XZJP would re-offend in the same manner.  The judge found that XZJP was genuinely contrite. It would also seem that, unlike many instances of persons facilitating the importation of drugs, there may not have been any substantial financial gain to XZJP and he was likely undertaking the task out of a (misguided) wish to help Mr HC.

3. The Tribunal does note that there have been a number of incidents while XZJP has been in detention, however these are, in general, characterised by frustration or minor disagreements with other detainees, rather than any consistent thread of misbehaviour.  The Tribunal notes that XZJP was released on parole at the earliest possible date, which indicates that the corrections authorities were satisfied with his conduct while incarcerated.

4. Taking all of this evidence into account, in particular Ms Player’s assessment and the interpolation of that assessment by his Honour into the imposition of the sentence, while there is a risk of re-offending, it is a low risk.

5. The Tribunal finds, because of the nature of the offence, that this primary consideration weighs against revoking the mandatory cancellation of the visa, but not, in these factual circumstances, heavily so.

   Best interests of minor children in Australia affected by the decision (paragraph 13.2)

6. There was no evidence before the Tribunal of any relevant minor children who may be affected.  XZJP’s three stepchildren are all adults, as are the children of his cousin Mr AV.  There were no other minor children nominated by parties that the Tribunal should take into consideration.

7. This primary consideration therefore is not engaged, and weighs neutrally in this assessment.

   Expectations of the Australian community (paragraph 13.3)

8. The Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that the person will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

9. FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’) the Full Court considered this passage in the now superseded Direction No. 65, but the conclusions of two of the three judges  of the Court (Charlesworth and Stewart JJ) remain on point because the wording of the relevant paragraph in the current Direction is relevantly the same.

10. In FYBR, Stewart J stated, at [100]-[101]:

    To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

    ·non-citizens will obey Australian laws when in Australia;

    ·it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.

    ·in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.

    Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive”.

    (Emphasis added.)

11. Stewart J also stated (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances.

12. The Respondent submitted that, because he had committed a serious crime and had a past history of offending, XZJP poses a continuing risk to the community and that the Australian community would expect he should not hold a visa.

13. The Tribunal considers that the circumstances of the offending, as set out above, do fit the description that XZJP has committed a serious offence, and that the community would expect a person being involved in trying to import illicit drugs, should lose his or her visa. 

14. The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa, but in the particular circumstances of XZJP’s cognitive impairment, not decisively so.

    Non-refoulement obligations (paragraph 14.1)

15. The Direction refers to Australia’s obligations not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. The Direction refers to Australia’s non-refoulement obligations under three treaties: the 1951 Refugee Convention, the Convention against Torture, and the International Covenant on Civil and Political Rights.

16. XZJP has claimed that he received two telephone calls from unknown male persons threatening him.  He said in his written statement (Exhibit A1):

    I am very scared about what will happen to me if I go back to Colombia.  After I was arrested but before I went to prison, I received two phone calls from Colombia.  The callers were associates of [HC] and threatened I would be killed if I went back there.  I am really scared because if I go back, they will be able to find me and carry out the threat.  In Colombia the police are corrupt and would pass information about me to the people who sent the drugs.  I believe that [HC] is in [name of town redacted], which is where my family lived, before I came to Australia.

17. In his oral evidence, however, XZJP retreated from parts of this statement.  He told the Tribunal that he did not know that the phone calls came from Colombia, only that the callers spoke Spanish, and speculated that they could have been calling from anywhere in Central America or from the USA.  When pressed about the contents of the calls, XZJP repeated the threats which are recorded earlier in these reasons, but said that nothing else was said about the persons being associates of HC.

18. The Tribunal notes that Mr HC was separately arrested from XZJP and pleaded guilty to attempted drug importation offences on the basis of the telephone interception records and the discovery of certain drug paraphernalia at his residence.  The judge also noted that Mr HC openly admitted to the police that XZJP was acting at his direction in arranging the hostel rooms and attempting to pick up the first package, and going to the post office to collect the second.

19. While it may be plausible that there is a vengeful element in Colombian drug gangs, this is not a case where XZJP’s evidence caused the arrest and conviction of Mr HC.  There was no trial of Mr HC because of his guilty plea and, owing to Mr HC’s own admissions, it does not appear that XZJP’s involvement was pivotal in the case built against him.

20. There was a paucity of evidence about these purported telephone calls.  It would seem to the Tribunal that XZJP may have been contemplating what might be the reaction in Colombia to the failure of the cocaine importation.  However, the Tribunal makes no finding about that.

21. Mr AV wrote in his statement (Exhibit A3):

    I am very worried about what would happen to [XZJP] if he returns to Colombia.  The drugs that were sent, which [he] was to collect, were lost because the police seized them.  Therefore, the people who sent the drugs have lost money.  If [he] is returned to Colombia, they will easily find him.  People like that pay workers at the airport to work for them, including to pass on information about people who arrive there.  I have no doubt that the drug exporters will know the moment [XZJP] arrives in Colombia and they would not hesitate to kill him, even years after the drugs went missing.

22. I accept that there is a substantial criminal element in Colombia relating to the drug cartels, and they have extensive influence, including infiltration into the State’s law enforcement agencies.  However, after careful consideration of XZJP’s claims, there is insufficient evidence to satisfy the Tribunal that XZJP would be exposed to either convention-related harm or is owed complementary protection.

23. In this assessment, the Tribunal finds that this consideration weighs neutrally.

    Strength, nature and duration of ties to Australia (paragraph 14.2)

24. The Direction requires the Tribunal to consider how long the person has resided in Australia, noting that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to time the person has spent contributing positively to the Australian community.

25. The Tribunal must also have regard to the strength, duration and nature of any family or social links with Australian citizens or others with the right to permanently reside in this country, including the effect on the person’s immediate family.

26. The Respondent submitted that XZJP has no immediate family in Australia.  As it turned out in the oral evidence at the hearing, that is not quite correct.  He has an adult stepdaughter who lives in Melbourne and with whom he has maintained contact, both directly and through his estranged wife. 

27. In terms of other connexions, Mr AV gave evidence of a close relationship with the Applicant, which continued after Mr AV moved from Sydney to Queensland with frequent (sometimes daily, Mr AV said) telephone conversations, which have continued while XZJP has been in prison and in immigration detention.  Ms AG also gave evidence of her friendship with the Applicant, and how he had assisted her parents after they came to Australia.

28. The Applicant’s employment history would be fairly characterised as patchy.  In his personal circumstances form he stated that he had been employed for three cleaning companies, in succession, from 1983 to 2014.  However, he tempered this in his oral evidence that he had had frequent periods of unemployment and underemployment.  There is also evidence from Mr AP that XZJP had frequently worked for him in his cleaning and decorating business.  The Tribunal finds on the evidence that the Applicant has made some positive contribution to Australia and Australian society.

29. XZJP has lived in Australia relatively continuously for almost forty years, and has a circle of friends here, including some he met through his church.  His offending began in 1987, some five years after he arrived in Australia, but has not been unremitting: there are no offences recorded between 1998 and 2003, nor between 2006 and 2015, except for holding a mobile phone while driving and one instance of driving without a licence.  As said earlier, the offence for which he went to prison in 2015 is his only serious offence.  The Direction stipulates at paragraph 13.1.1(1)(c) that crimes committed against government officials in the performance of their duties are serious, and XZJP throwing his mobile phone at a police officer would technically fit that description, and led to a conviction for assaulting a police officer, which is rightly to be depreciated, the facts place it in at a low level of such an offence.

30. Overall, because of his connexions in this country, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, but not unalloyedly so.

    Impact on Australian business interests (paragraph 14.2)

31. Neither party submitted that this particular consideration is relevant.  Based on the evidence of XZJP’s employment history referred to above, the Tribunal finds that it weighs neutrally in this assessment.

    Impact on victims (paragraph 14.4)

32. The Tribunal should consider the impact of a decision not to revoke on members of the Australian community, including victims of the person’s criminal behaviour, where that information is available.

33. The sentencing judge (GD, p 35) noted that due to the successful interception of the packages by the Australian Federal Police, none of the drugs found their way to drug users. Consequently, in this case there were no victims of XZJP’s offence.

34. In any event, this consideration would only be relevant if any victim knew of the immigration status of XZJP, and there is no evidence before the Tribunal that is the case, so the consideration weighs neutrally in this assessment.

    Extent of impediments if removed (paragraph 14.5)

35. The Tribunal must consider the extent of any impediments a person 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. The Tribunal should take into account the person’s age and health, any substantial language or cultural barriers and any social, medical and economic support available to them in that country.

36. Counsel for the Applicant submitted that XZJP would be completely unsupported if he returns to Colombia, with no home to go to, and no funds, and that his limited intellectual capacity and associated vulnerability are likely to make any adjustment to living in Colombia beyond his capacity.  Mr Hughan further submitted that the lack of a state social security regime and limited employment prospects would exacerbate the impediments he would be likely to face.

37. The Respondent accepted that the Applicant has not resided in Colombia since around the age of 20 and that he may face some initial difficulty re-establishing himself.  However, having spent his formative years there, Mr Orchard submitted that the extent of the impediments would not be insurmountable.

38. The Tribunal considers that XZJP’s employability would be affected, owing to his lack of skills and age.  The evidence was that, although he has recently re-connected with his sister who lives in their home town, her own circumstances mean that she would be unlikely to offer him any substantial assistance.  Other witnesses who had knowledge of the family and local situation were of the view that there was no one, now, in Colombia who could provide any substantial financial support to XZJP.

39. The Tribunal considers that there would be no substantial language or cultural barriers; XZJP is fluent in Spanish and has been back to Colombia on several occasions since coming to Australia to live in 1982.  There is, however, in this particular case the special factor of his diagnosed intellectual disability, and the Tribunal considers that would be a significant impediment for him in maintaining basic living standards, even in the context of what is generally available to other citizens of Colombia.

40. The Tribunal finds that this consideration weighs in this special circumstance in favour of revoking the mandatory cancellation of the visa, and relatively heavily so.

    SUMMARY AND CONCLUSION

41. As required by paragraph 13 of the Direction, the Tribunal has taken the specific circumstances of this case into account.  Of the three primary considerations, two weigh against the Applicant, but neither of them especially heavily, and the third primary consideration is not engaged.  Of the relevant other considerations, both weigh in his favour, one slightly and one relatively strongly.

42. As stated in paragraph 8(4) of the Direction, primary considerations should generally be given greater weight than other considerations. However, assessing whether the discretion is enlivened for there to be ‘another reason’ under section 501CA(4)(b) of the Act requires the Tribunal to take into account the totality of the Direction.

43. The Full Court of the Federal Court of Australia held in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 261; 124 ALD 68, at [57]:

    Notwithstanding these features, as the Minister submitted, the terms of Direction No. 55 do not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501

44. The Full Court has also held (Minister for Home Affairs v HSKJ [2018] FCAFC 217 (at [35]), that the Tribunal would err if it concluded that an ‘other’ consideration in the Direction was incapable of outweighing a primary consideration. This is consistent with the use by the Minister in the Direction of the qualifying word ‘generally’ in the text of paragraph 8(4).

45. A major factor in this particular case is the medical evidence before me.  Judicial account was taken of the diagnosed intellectual cognitive disability of XZJP in the level of culpability of his offending, especially as a feature of that disability was his relative credulity, which it may be seen led to him being involved, and being directed by the principal offender, in attempts to possess drugs. 

46. While I was concerned to some extent about XZJP’s evidence of what was in the packages, Mr Hughan rightly submitted that it should be found that he knew there were drugs in the parcels.  There was, however, a pervading sense of unworldliness about XZJP in his appreciation of that he was doing, and the driver in his conduct to ‘do a favour’ for Mr HC is shown by him telling the Tribunal that, even though he received a phone call saying there were drugs in the parcel at the post office, he nevertheless went forward to collect the parcel, straight into the arms of the police.  This conduct reflects Ms Player’s conclusion about his severe cognitive impairment.  This quality was also reflected throughout XZJP’s oral evidence before me.

47. After careful consideration, I do not believe – in these special circumstances – the preferable outcome in this review is that XZJP should not have the mandatory cancellation of his visa revoked. The Tribunal finds that the discretion provided for in section 501CA(4)(b)(ii) of the Act is enlivened and that there is another reason, in terms of the Act and as set out in these reasons, why the mandatory cancellation of the Applicant’s visa should be revoked.

    DECISION

48. The decision under review, being the decision of the Respondent dated 21 August 2017 not to revoke the mandatory cancellation of the Applicant’s Class BB (Residence) Subclass 155 (Five Year Resident Return) visa pursuant to section 501(3A) of the Migration Act 1958, is set aside.

49. In substitution, the cancellation of the Applicant’s visa is revoked under section 501CA(4)(b)(ii) of that Act.

I certify that the preceding  134 (one hundred and thirty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

……[sgd]……………………………………………
Associate
Dated: 6 March 2020

Dates of hearing:

7 and 8 October 2019

Advocate for the Applicant:

Mr G Hughan

Solicitors for the Applicant:

Advocate for the Respondent:

Solicitors for the Respondent:

A.U.M. Lawyers

Mr C Orchard

Sparke Helmore Lawyers