YXXV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

YXXV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3934 (21 November 2022)
Division:GENERAL DIVISION
File Number: 2022/7243
Re:YXXV
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:R Cameron, Senior Member
Date:21 November 2022
Place:Melbourne

The Tribunal sets aside the decision and in substitution, the Tribunal decides under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) that the mandatory cancellation of the applicant’s Class BF transitional (Permanent) visa is revoked.
.......................[sdg].................................................
R Cameron, Senior Member
Catchwords
MIGRATION – cancellation of Class BF transitional (Permanent) visa – substantial criminal record – delegate decided not to revoke mandatory cancellation – ministerial direction No. 90 – primary considerations – protection of the Australian community – best interests of minor children in Australia – expectations of Australian community – extent of impediments if removed – links to the Australian community – offending driven by drug and alcohol addiction – evidence that applicant has been drug-free for a considerable period of time –applicant has substantial links to Australia – applicant resided in Australia for a majority of his life – applicant has significant health conditions – decision under review set aside and new decision substituted
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/21 v Minister for Home Affairs [2022] HCA 17
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984,1465 UNTS 85 (entered into force 26 June 1987)
Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954)
DFAT Country Information Report, September 2020
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
REASONS FOR DECISION
R Cameron, Senior Member
21 November 2022
INTRODUCTION

The applicant seeks review of a decision made on 29 August 2022 by a delegate of the respondent, not to revoke the mandatory cancellation of the applicant’s Class BF transitional (Permanent) visa (“the visa”) under s 501CA (4) of the Migration Act 1958 (Cth) (“the Act”) (“the reviewable decision”).
THE EVIDENCE BEFORE THE TRIBUNAL
There was both viva voce and documentary evidence before the Tribunal. Both the applicant and his father gave oral evidence.
The applicant’s documentary evidence consisted of 40 annexures, a witness statement made by the applicant on 12 October 2022, and a witness statement made by his father on 7 October 2022. Additionally, there were the “G” and “Supplementary G” documents, provided by the respondent.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister (or his delegate) 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.
The character test referred to in s 501(3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) of the Act provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“Direction 90”).
DIRECTION 90
It is not necessary to reproduce the entirety of Direction 90. However, it is useful to refer to several parts of it.
Paragraph 4 “Interpretation” contains a very broad definition of the term “family violence”. The term is defined to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include an assault or a sexual assault or other sexually abusive behaviour.
Paragraph 5.2 “Principles” provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for the full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;
(b)the Australian community expects that the Australian government can and should cancel non-citizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community; and
(c)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 revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 “Exercising discretion” provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraphs 8 “Primary Considerations” and 9 “Other considerations” where relevant to the decision.
Paragraph 7 “Taking the relevant considerations into account” provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[2]
[2] Direction 90 at paragraph 7.
Paragraph 8 “Primary considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Paragraph 9 “Other Considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are other considerations:
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; and
(ii)impact on Australian business interests.
ISSUES BEFORE THE TRIBUNAL
There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.
That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is “another reason” why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
In the applicant’s Statement of Facts, Issues and Contentions and in submissions made by counsel on his behalf, the applicant conceded that he does not pass the character test.[3] The concession was made because of the operation of s 501(6)(a) and s 501(7)(c) of the Act as he has been sentenced to a term of imprisonment of 12 months or more.
[3] The concession is made in paragraph 9 of the applicant's Statement of Facts, Issues and Contentions dated 13 October 2022. It was also made by counsel for the applicant in submissions to the Tribunal. Additionally, the applicant himself in paragraph 3 of his witness statement made on 12 October 2022, made such a concession.
In the County Court of Victoria on 28 July 2016 the applicant was convicted of armed robbery and sentenced to a term of imprisonment of six years with a minimum term of four and a half years before being eligible for parole. He completed this sentence on 28 September 2021 and has been in immigration detention at MITA since.
Witness Evidence
The applicant was an impressive witness. Unlike many who appear before this Tribunal, the applicant’s evidence was given in a truthful manner. There was no attempt to deflect attention from his offending and what he had done with his life, which he readily conceded in many respects had been wasted. There was no attempt at embellishment or exaggeration or any other form of reconstruction. Counsel on his behalf submitted, and the Tribunal agrees, that he presented as an honest, forthright and credible witness. The applicant spoke candidly about the problems he had throughout his life with addictions to drugs and alcohol. Also, he readily conceded that much of his offending was for no reason other than to obtain money to buy drugs.
On 26 April 2001, when His Honour, the late Judge Walsh, sentenced the applicant in the County Court in Mildura, he observed that the applicant had a supporting family. He further observed that the applicant’s parents and sister were in court during his plea and that they were decent law-abiding people. It was apparent to the Tribunal that this is still the case with the applicant’s father. Unfortunately, his mother, having passed away in November last year, could not appear before the Tribunal in this matter. His father appeared before the Tribunal and presented as a credible witness, and as a decent man who is prepared to provide his son with the utmost support that he is able to provide. He also gave his evidence in a candid and balanced manner. He acknowledged the seriousness of his sons prior offending. There was no attempt at exaggeration or embellishment, and he was clearly alive to the challenges that his son faces in his future life as it may be. The Tribunal accepts his evidence.
BACKGROUND AND OFFENDING
The applicant is presently 54 years of age, having been born in October 1968, and is a citizen of Turkey.
He arrived in Australia in February 1969 as a four-month-old baby with his parents and older brother. He has two sisters who were born in Australia.
The applicant has largely lived in Australia ever since his arrival, save and except for two extended return trips to Turkey between July 1984 and March 1985, and March 1986 and November 1986.[4]
[4] Document G 43 of the G documents the applicant's "Movement History" is referred to.
Throughout the time when the applicant was growing up, his family moved to several locations in the eastern part of Australia. His parents tended to move because they engaged in seasonal work such as fruit picking or working in factories.
The applicant completed his education to Year 11 and thereafter completed a cabinetmaking apprenticeship. He continued working as a cabinetmaker until he was in his early 30s when, unfortunately, his drug and alcohol problems largely derailed his life.
The applicant was briefly married. The relationship endured from approximately 1998 until 2000. The union produced two children; a daughter, born in 1999 and a son, born in 2000. Regrettably, after the applicant and his wife separated, he lost contact with his children. Only recently through the “Facebook” platform has he reconnected with his daughter and commenced online conversations with her. She now has two infant children of her own with whom he desires to make contact. As he said in evidence, he wants to be a real grandfather to them.
The applicant’s parents became Australian citizens 2 October 1985. They did so at a citizenship ceremony conducted at the Brisbane Town Hall. The applicant’s evidence was that he gave the oath of allegiance at that time and assumed that he had acquired Australian citizenship. On several occasions, details of which need not be recounted for the purposes of these reasons, he had interactions with government agencies or semi-government agencies where he was led to believe that he was indeed an Australian citizen. His name was even included on the electoral roll, and he voted at two elections. He was also called up for jury duty.[5]
[5] Document G16 of the G documents paragraphs 33-34.
The applicant brought a proceeding in the Federal Court of Australia in which he sought a declaration that he is an Australian citizen and has been since 2 October 1985. After a hearing Justice Thomas delivered written reasons in which he found that the applicant is not an Australian citizen.[6]
[6] The reasons of Justice Thomas can be found in document G40 of the G documents.
Mention should be made at this point of evidence that the applicant gave concerning sexual abuse that he suffered as a five-year-old child at the hands of a family friend who looked after him and his brother whilst his parents worked. He gave compelling evidence of the gross breach of trust that he experienced and the abuse that he consequently suffered. He stated that the abuse he suffered had a significant impact upon him and has made him feel very uncomfortable ever since. He gave evidence of the personal pain he has suffered as a result of these experiences. It was explained by the applicant in his evidence that he commenced using drugs at the age of 16. He said he did so to mask all the pain that he was suffering as a result of the sexual abuse that he experienced. He put his lengthy history of drug and alcohol problems down to the sexual abuse that he had suffered. The Tribunal accepts this evidence from the applicant. It was not challenged in cross-examination.
Further, there was in evidence before the Tribunal a report dated 21 October 2008 from Warren Simmons, a Consulting Psychologist, in which a history of sexual abuse suffered by the applicant when he was a child was recounted.[7] Mr Simmons opined that it was apparent that the sexual abuse has had a significant impact on the applicant. He also recorded that this impact had, to some extent, been a factor behind the applicant’s substance use. This certainly corroborates the applicant’s evidence on this topic.
[7] Mr Simmons report of 21 October 2008 was included as part of document SG1 page 19 of the SG documents. The report was prepared as part of the plea material presented to the County Court of Victoria with respect to his offending in March 2008. It was described by the sentencing judge as part of "a considerable amount of mitigatory material before the court".
With respect to the sexual abuse that the applicant experienced he also gave evidence that it had been very difficult for him to cope over the years. He stated that he has attempted to obtain psychiatric or psychological assistance for the pain that he has experienced as a result of the abuse but has not been able to find someone who could assist him. Despite his attempts, he has been unable to find a professional he can trust. He stated that he feels he needs to find such trust and that it is an important factor in addressing the issues that arise from the abuse that he suffered. He considers that it is important to obtain closure and to do so he needs to in effect, “get it out”. He now recognises the importance of seeking professional help from an appropriately qualified mental health professional, and if released into the community fully intends to do so. The Tribunal also accepts the applicant’s evidence concerning this issue and that he has expressed a genuine desire to seek assistance from a suitably qualified healthcare professional to address the issues that he faces arising from the sexual abuse that he experienced.
The applicant has a lengthy history of offending and has been imprisoned no less than 11 times. Specific details of his offending were before the Tribunal in the National Criminal History Check.[8] The applicant’s offending spanned between the years 1988 and 2016. He was convicted of approximately 43 offences. Given the extent of the applicant’s offending, the Tribunal considers that it is perhaps most appropriate to simply identify the categories of crime that he committed. There will be specific analysis of his more recent offending undertaken later in these reasons. The types of offences or categories of offences committed by the applicant were as follows:
[8] Document G 3 of the G documents. The contents of the National Criminal History Check are referred to in their entirety for full details of the offences committed by the applicant, the dates upon which he was convicted, together with the sentences imposed by the respective courts.
(a)criminal damage;
(b)fail to answer bail;
(c)intentionally cause injury;
(d)carry an imitation pistol without authority;
(e)assault with a weapon;
(f)obtain a financial advantage by deception, obtain property by deception;
(g)handle/receive stolen goods;
(h)attempted theft;
(i)attempted armed robbery;
(j)armed robbery;
(k)theft of a motor vehicle;
(l)burglary;
(m)theft;
(n)unauthorised possession of a controlled substance;
(o)use of a drug of dependence;
(p)possess a drug of dependence;
(q)make a threat to kill;
(r)unlawful assault;
(s)assault with an instrument;
(t)recklessly cause injury;
(u)recklessly threaten serious injury;
(v)recklessly cause injury;
(w)robbery;
(x)possess methyl amphetamine;
(y)use methyl amphetamine;
(z)possess cannabis;
(aa)assault police officer;
(bb)commit an indictable offence whilst on bail; and
(cc)drive in a manner dangerous.
Additional details of the applicant’s offending, some of which will be referred to in more detail subsequently in these reasons, were obtained in the Reasons for Sentence of the County Court of Victoria 28 July 2016, 30 October 2008 and 26 April 2001. There was also a significant volume of documents that had been subpoenaed from the County Court of Victoria, the Office of Public Prosecutions Victoria, the Department of Justice and Community Safety, VicRoads and Victoria Police.
The applicant’s health problems

The applicant has a number of significant health problems which it is appropriate to mention at this juncture.
He suffers from severe heart disease. He has been diagnosed with severe ischaemic cardiomyopathy. Ischaemic cardiomyopathy is a condition where the heart’s ability to pump blood has decreased because its main pumping chamber, the left ventricle is enlarged, dilated and weak. Symptoms of ischaemic cardiomyopathy can include shortness of breath, swelling of legs and feet, fatigue, angina, weight gain, palpitations, dizziness, and fainting. It is a condition that invariably requires treatment by way of supervision of an interventional cardiologist who monitors the patient’s heart’s progress from time to time, and the prescription of appropriate medication. The medication must be taken for the remainder of the patient’s life.
He was also diagnosed with triple vessel disease which is severe damage or disease in the major blood vessels that supply the heart.[9]
[9] The applicant’s Annexure 6 at page 45 being an IHMS Special Needs Health assessment dated 9 March 2022 is referred to. Also, a report of Dr Wee which contains the results of an echocardiogram, document G26 of the G documents page 135 is referred to.
So severe was the applicant’s heart condition in February of this year that a cardiac surgical conference was held with respect to such condition at the Northern Hospital on or about 8 February 2022.[10] The Tribunal should observe that the conference was attended by five cardiologists, two cardiac surgeons and two registrars. The contents of the cardiac surgical conference outcome report are referred to in their entirety. It showed a severely diseased heart with extensive blockage and degeneration and revealed significant viable myocardium throughout most of the left ventricle territory. The left ventricle is the main pumping chamber of the heart. Significantly, it is also reported that the applicant was considered too high risk for a cardiac artery graft at that time.
[10] In evidence was a document entitled, "Cardiac Surgical Conference Outcome" of 8 February 2022. Document G26 of the G documents page 134.
The applicant underwent cardiac artery bypass surgery on 9 June 2022 at the Austin Hospital. He spent three days in intensive care. His evidence to the Tribunal was that he is still feeling the effects of the surgery. He stated that he has lost a lot of energy and is generally slower. He is afraid to overexert himself as his body is still recovering.
Understandably, the applicant is prescribed a range of medication for his heart conditions. His evidence was that he takes twelve different medications each morning and seven in the evening.[11]
[11] Annexure 7 of the applicant's materials included the IHMS clinical records detailing his "Current Medications". It reveals that he is currently taking daily a significant number of both prescription and non-prescription medications such as paracetamol and aspirin.
The conditions of anxiety and depression have been suffered by the applicant for many years.[12] The conditions have been managed with medication as required. He currently takes a drug known as Fluoxetine which has been prescribed by MITA clinical staff. The applicant gave evidence that his symptoms tend to get worse when he is in jail or detention. Another manifestation of this condition is that the applicant, when in custody both in prison and in immigration detention, continues to suffer from panic attacks, particularly when he thinks about issues of heart health. He tends to become more anxious and depressed as he dwells on the seriousness of his heart conditions. It is also well-known that following major cardiac artery bypass surgery the patient frequently suffers from what is known as the “cardiac blues”. These panic attacks are frequently exacerbated when he is confined in small spaces such as jail cells.
[12] Some history of the applicant's conditions of anxiety and depression were also recorded in a report dated 21 October 2008 prepared by Warren Simmons, a Consulting Psychologist. That report was in evidence before the County Court of Victoria when he was sentenced on 30 October 2008. Mr Simmons expressed the view that, with respect to his anxiety disorder, the applicant would benefit from psychiatric review. It appears that there has been no psychiatric review of his mental health conditions.
The applicant suffers from chronic back pain. His chronic back pain condition arose from a car accident in 2005 that he was involved in where the car he was driving ran into the back of a truck. In that accident he suffered a back injury and a broken ankle. His injuries were significant enough for him to qualify for a disability support pension. He gave evidence that he can still function on a daily basis, but his chronic pain has slowed him down considerably particularly as he has gotten older.
In evidence before the Tribunal was an IHMS Special Needs Health assessment, which revealed that the applicant had undergone an MRI of the lumbar region of his spine on 21 February 2022.[13] The MRI revealed moderate disc degeneration (osteoarthritis of the spine), moderate facet arthropathy (arthritic condition of the spine), shallow disc bulge (compression of the disc) and broad disc osteophyte (protruding ridge of the spine). The applicant is managing his chronic back pain through significant medication.[14]
[13] Annexure 6 of the applicant's materials.
[14] The Current Medications document from IHMS (Annexure 7 to the applicant's materials at page 48) reveals that he is taking a prescription drug Pregabalin twice a day. The dose is three capsules on each occasion. It is a high dose which reflects the level of pain that the applicant is experiencing.
More recently the applicant has been diagnosed with a renal impairment disorder. Clinical records from IHMS, received from a consultation dated 5 September 2022, contained a number of entries and assessed the condition as “worsening/fluctuating”.[15] It is apparent from an examination of those materials that the applicant will, in the very near future, need to be referred to a renal specialist for treatment of this condition. The condition suffered by the applicant is clearly continuing to deteriorate as it has done over the course of this year. It should also be observed that the clinical records in evidence before the Tribunal reveal that the applicant has been prescribed medication for this condition.
[15] The clinical records containing these entries are at Annexure 9 of the applicant's materials.
The applicant gave evidence that he suffers from an acquired brain injury which was caused when his brother struck him over the head with a cricket bat in 2015 during the course of an argument. He further gave evidence that he believes his cognitive skills are still present. However, upon recovering from the initial injury he has observed other changes which appear to be permanent. Examples of these changes include that his eyes often spasm which interrupts his sleep. As a result of these eye spasms, he has been prescribed sleeping tablets before going to bed. There was no evidence to suggest that he has received any medical attention for this condition save and except for having sleeping tablets prescribed. It appears that the condition should be thoroughly investigated and treated by appropriately qualified medical specialists as soon as practicable.
In terms of his health conditions, the applicant also points out that he is currently a participant in a methadone program. He has undertaken the program for two purposes. Initially it was to manage his previous drug dependency. Subsequently, he undertook the program or perhaps more accurately, it should be described that the program assisted with his pain management for his chronic back condition.
DIRECTION 90
Primary consideration 8.1 of Direction 90 - Protection of the Australian community
Paragraph 8.1(1) of Direction 90 provides that when considering the protection of the Australian community, the Tribunal 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 90 further states:
(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.
Paragraph 8.1.1 of Direction 90 - The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1 of Direction 90 identifies several factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph is not exclusive.
Paragraph 8.1.1(1)(a)(i) of Direction 90 provides that, without limiting the range of conduct that may be regarded as very serious, violent and/or sexual crimes are viewed very seriously by the Australian Government and the Australian community.
Paragraph 8.1.1(1)(b)(ii) of Direction 90 also provides that, without limiting the range of conduct that may be considered serious, crimes committed against vulnerable members of the community are considered by the Australian Government and the Australian community to be serious.
The applicant first started offending in 1988 when he was 19 years old. The first conviction was for criminal damage (intent to damage/destroy). There was unfortunately a trend of increasing seriousness on his part. In April 1991, he was convicted of intentionally causing injury. His next offence was a conviction recorded in December 1991 for carrying an imitation pistol without authority.
On 24 September 1993, in the Melbourne County Court, the applicant was convicted of three charges of attempted armed robbery. No sentencing remarks concerning this offending was in evidence before the Tribunal. However, the applicant readily acknowledged the circumstances of his offending. He stated that he had attempted to rob service stations using a machete. At the time of the offending, he was under the influence of drugs and attempting to obtain money to pay for drugs. He was sentenced to 18 months imprisonment on each count with 12 months on each count to be served concurrently. It should be observed that the 1993 convictions for attempted armed robbery were the first of several convictions for robbery and armed robbery offences that would follow.
On 27 January 1994, the applicant was sentenced to two months’ imprisonment at the Frankston Magistrates’ Court after being convicted of intentionally causing injury. Once again, there were no sentencing remarks or transcript of proceedings before that court in evidence before the Tribunal. The applicant was unable to recall the circumstances of his offending but believed it may have happened whilst he was in jail.
In 1998 the applicant was convicted of several offences that led to him being imprisoned on multiple occasions.
On 23 February 1998, he was convicted in the Bendigo Magistrates’ Court of theft of a motor vehicle and sentenced to 14 days imprisonment. He was also convicted on the same day of obtaining property by deception and sentenced to one month’s imprisonment.
On 14 April 1998, the applicant was convicted in the Mildura Magistrates’ Court of burglary and theft and sentenced to three months imprisonment on each charge to be served concurrently, such sentence suspended for 12 months under the applicable provisions of the Victorian Sentencing Act. He was also convicted on the same day in the same court of theft from a shop (shopsteal) and obtaining property by deception. He was fined an aggregate of $750 and ordered to pay $80 compensation.
On 4 May 1998, in the Mildura Magistrates’ Court the applicant was convicted of breaching a suspended sentence. The sentence was reinstated, and the applicant was ordered to serve concurrently on each charge three months imprisonment.
On 26 June 1998, in the Melbourne County Court the applicant was convicted of burglary, theft, criminal damage (intent to damage/destroy), possess drug of dependence and use other drugs of dependence. He was sentenced to a term of imprisonment of three months on each count to be served concurrently. There were no documents concerning this offending amongst those that were subpoenaed from the various parties previously referred to. The applicant was unable to recall the circumstances of this offending.
On 26 April 2001, at the Mildura County Court, the applicant was convicted of the following crimes:
(a)drive in a manner dangerous;
(b)theft;
(c)make a threat to kill; and
(d)attempted armed robbery.
Such offences occurred on 18 December 2000 and involved the theft of two boxes of beer from the Sunnycliffs store, attempted armed robbery perpetrated on the proprietor of that store in the making of a threat to kill during the course of those events. As the judge observed, the atmosphere of serenity attached to the conduct of that store was broken on that day by reason of the applicant’s offending. The applicant produced a knife and demanded money from the female shop assistant present at the store on that day. Additionally, the applicant waived the knife in a threatening manner and produced a “Molotov cocktail” in a bottle which he informed the victim was a bomb.
The sentencing remarks of His Honour Judge Walsh were in evidence before the Tribunal. It is not necessary for the purposes of these reasons to reproduce many of the remarks made by the Judge. However, some observations should be made.
The applicant’s offending was amateurish in its planning and its execution. It was almost inevitable that he and his co-offenders would be apprehended, as they were shortly after the commission of the crimes. The sentencing judge observed that the applicant made admissions in his recorded interview but was somewhat inclined to attribute to one of his co-offenders the primary responsibility for the armed robbery. Naturally, the Crown’s case was that all the offenders were equally to blame. The judge also observed that the applicant presented as a cooperative and truthful interviewee. It was also observed by the judge that, “[y]ou stated that the events which took place in the store was spontaneous rather than well and carefully planned, and I must say that a review of the entire offence reveals that it was perpetrated in a very foolhardy and amateurish manner.” As noted, the Tribunal agrees with these observations.
The judge also recorded, “[y]ou acknowledge that the victim of the attempted armed robbery should be in shock and you did express your remorse for your actions”. He further stated:
[t]he victim impact statements and, in particular, the statement of [the victim] present a familiar pattern of innocent, hard-working people who experienced real difficulty in coping with the emotional trauma associated with their submission to attempts of armed robbery of this nature. Her enjoyment of life is shattered and the mental, physical and personality barriers which your crimes have created are substantial and may never be completely broken. She states, with real conviction, that no one has the right to do this to another human being.
Those observations by the sentencing judge really do speak for themselves in respect to the impact of the applicant’s offending on the victim.
It should also be observed that tendered before the sentencing judge was a report from Dr Walton, a Consultant Psychiatrist, who had examined the applicant at Port Philip Prison. Dr Walton expressed the opinion that the applicant had a depressive disorder. He also concluded that the applicant’s rehabilitation depended substantially on his ability to remain drug free. The Tribunal considers that those observations, although made over 20 years ago by Dr Walton, are equally as applicable today.
In a consideration of the nature and seriousness of this offending on the part of the applicant it is also appropriate to acknowledge that the sentencing judge took into consideration and gave weight to several contentions that were advanced on his behalf at the plea hearing. These include that the applicant’s plea of guilty was entered at the first available opportunity, his cooperation with the police, that there was no physical injury caused to the victims, and the relatively unsophisticated nature of the attempted armed robbery. Additionally, the judge recorded the significant influence of drugs and alcohol the time of the offending. There was also the applicant’s depressive disorder, as observed earlier. Finally, there was the fact that the applicant was in protection within the prison system. These factors are also relevant to the weight that this Tribunal applies to the applicant’s offending.
Similarly, in a consideration of the nature and seriousness of the applicant’s criminal offending any observations made with respect to this topic by the sentencing judge are highly relevant. Judge Walsh, amongst other things, stated in his reasons for sentence, “I do not need to remind you, however, that you have committed serious offences”. The Tribunal agrees. On any objective analysis, the applicant’s offending was certainly serious.
It was also offending that can be considered very serious within the meaning of paragraph 8.1.1(1)(a) of Direction 90. This is because the applicant’s offending was both violent and was a crime of a violent nature against a woman (the victim of the attempted armed robbery committed by the applicant referred to earlier). The production of the knife and the Molotov cocktail is unquestionably serious.
On 30 December 2004, in the Mildura Magistrates’ Court, the applicant was convicted of recklessly causing injury. He was sentenced to four months imprisonment, cumulative. He was additionally convicted of recklessly threaten serious injury, assault with instrument and unlawful assault to be served concurrently. He was also convicted on the same day of making a threat to kill and sentenced to three months imprisonment to be served cumulatively. Further, on the same day, the applicant was convicted of the offence of robbery and sentenced to 15 months imprisonment as a base sentence. For this offending the applicant had imposed upon him a total sentence of one year and 10 months imprisonment. A non-parole period of 15 months was fixed.
On 30 October 2008, in the Mildura County Court, the applicant was convicted after pleading guilty to one count of armed robbery of a service station in Mildura, which occurred on 13 March 2008. He was sentenced to five years imprisonment with a minimum non-parole term of three years and six months.
Once again, this crime was notable for its amateurishness in both planning and execution. It occurred on a day when the applicant consumed 20 Xanax tablets for which he had a prescription to take two a day. Upon consuming the 20 tablets he fell asleep. Upon awakening he decided to carry out the armed robbery of the service station. The sentencing judge described the applicant as going “on a Xanax binge in the 12 hours prior to this offending”.
The applicant entered the service station and told the victim, “I’ve got a bomb in my bag and I’ll blow this place up if you don’t empty your till”.[16] The progress of the crime to that stage was not taken seriously by the attendant to whom the threat was made.[17] The applicant then became aggressive and produced a knife from his pants. The attendant then was placed in fear and handed over approximately $480 and a packet of cigarettes to the applicant who then left the premises. Shortly thereafter, the applicant was arrested. He was conveyed to the Mildura police station where a tape-recorded record of the interview was conducted, and he made full admissions.[18]
[16] The victim made a statement on 13 March 2008 from which this quote is taken. The statement is part of document SG1 of the SG documents at page 39.
[17] In his statement the victim said after the comment was made by the applicant, "[h]e was quite calm when he said this, so I thought it was a joke. I sort of shrugged it off".
[18] A transcript of the tape-recorded record of interview between the applicant and the police forms part of document SG1 of the SG documents commencing at page 66.

The sentencing judge stated that the applicant’s offending was of a serious nature. He also observed that no victim impact statement was provided to the court. The judge did observe that, “it is common knowledge that those who are the victim of an armed robbery generally suffer psychological upset as a result of being subjected to the frightening and perhaps terrifying circumstances of being the victim of an armed robbery”. This prescient observation of the sentencing judge is indeed borne out by a comment that the applicant himself made in response to a question from investigating police officers during his record of interview at the Mildura police station. When asked to describe the victim’s reaction the applicant stated, “[h]e was a bit petrified about it”. This is perfectly understandable. It also reflects the serious nature of the applicant’s offending. Once again, in any objective measures the applicant’s offending is serious. This conclusion is reinforced by the sentencing judge’s comment that armed robbery is a serious offence with a maximum penalty of 25 years imprisonment. The Tribunal agrees with these sentiments.
On 17 May 2016, the applicant was convicted at the Shepparton Magistrates’ Court of assaulting a police officer, using methyl amphetamine, possessing methyl amphetamine and possession of cannabis. He was sentenced to an aggregate of one month imprisonment to be served concurrently.
The applicant was unable to recall the circumstances of this offending. However, there was a statement made by the informant which formed part of a preliminary brief the contents of which the applicant did not disagree with. The applicant’s offending with respect to assaulting a police officer took place after the officer concerned had commenced a pat down search of the applicant’s pockets to locate any further methyl amphetamine that may have been in his possession. Approximately 10 seconds into the search the informant recorded that the applicant suddenly entered into a rage and elbowed him to the chest and pushed him to the shoulder and head in an attempt to get away. The applicant was tackled to the ground by the police officers present and was eventually restrained and handcuffed. Whilst this was taking place the applicant was swearing and violently resisting arrest.
The informant recorded that the applicant appeared to be suffering some type of psychosis. After approximately 10 minutes the applicant had calmed down and was compliant and coherent. Upon arrival at the police station the informant described him as incredibly apologetic. He also described him as appearing genuinely remorseful for his actions and noted that he stated such actions were out of character for him. It was recorded in the preliminary brief that the applicant had admitted using cannabis, having taken two bourbon and cokes and methyl amphetamine during the afternoon. He had also admitted to smoking methyl amphetamine just prior to the police arrival.
The Tribunal considers that the applicant’s offending against the police officer on this day was serious. Police officers are entitled to execute their duties and go about their business without the risk of being assaulted. All too frequently it is a hazard that they face daily when undertaking their duties. It cannot be condoned. It is also offending that, by reason of the language used in paragraph 8.1.1(b)(ii) of Direction 90, is considered serious by the Australian Government and the Australian community because it was committed against a police officer in the performance of his duties.
On 28 July 2016, in the Melbourne County Court, the applicant was convicted of one count of armed robbery. He was sentenced to a term of imprisonment of six years with a non-parole period fixed of four and a half years.
The applicant’s offending for the above sentence occurred on 8 October 2015 at a service station situated in Kialla. Once again, the applicant’s offending was amateurish in the extreme with respect to its planning and execution. By reason of this, it was inevitable, as was the case, that the applicant would be quickly apprehended. The applicant armed himself with a machete and was wearing a rubber facemask. By the time the applicant attended the service station late at night, its doors had been locked as a security measure. Entrance could only be gained by pushing a button to open the doors. The attendant present would then release a mechanism as a result of the button being pushed on the outside by whoever wish to gain entrance. The applicant, realising this, was required removed his mask and pressed the button. The console operator, who was the victim of the applicant’s offending, did not observe the applicant removing his mask. The console operator unlocked the door.
The applicant then demanded cash and cigarettes from the console operator. When the demand was not met and the operator showed some hesitancy, the applicant produced a machete and waved it at the console operator. As the sentencing judge observed, “[q]uite incredibly, [the applicant was] unmasked during this time”. Then, having waived the machete and made the demands, the applicant replaced the mask over his face. The judge also observed that, “[t]he machete by itself is a frightening weapon and the mask is indeed hideous and might well invoke fear in some people”.
The console operator then placed $280.00 and 10 packets of cigarettes into a plastic bag that had been handed to him by the applicant. The applicant then decamped from the service station premises. He stopped and removed his jeans, shoes and jacket and threw them, together with the machete and the rubber facemask, over the fence of the adjacent premises, being a swimming pool shop. Shortly after this the applicant was apprehended by the police carrying the plastic bag containing the cigarettes with the cash hidden in his clothing. The applicant readily admitted the offences. He directed the police to the swimming pool shop where all the discarded items were recovered. All the offending was recorded on CCTV.
The applicant’s offending clearly had a significant effect on his victim. The console operator made a statement in which he recorded that he was very frightened by his experience as a victim of the armed robbery. The business proprietor also lodged a victim impact statement. She observed that it is very difficult to employ staff. She also observed that the applicant’s actions had taken away from staff the feelings of safety for just a few dollars. These observations made by the victims of the offending are perfectly understandable.
The trial judge observed that the applicant’s offending was serious. It was also recorded in the reasons for sentence by the trial judge that the applicant’s counsel, who appeared at the plea hearing, also readily conceded that it was a serious offence. The Tribunal agrees. There can be no other conclusion. The seriousness is also reflected in the six year sentence imposed by the judge.
Lest it needs to be reiterated, there are several reasons why the applicant’s offending must be classified or categorised as serious. There were several crimes of violence, details which have been recounted. One of his armed robberies was committed against a woman. In several of his armed robberies the applicant has used weapons such as knives and machetes. They unquestionably would have had a significant effect on his victims. There was the inevitable impact on his victims as has also been outlined. Although one may contend that the armed robberies the applicant committed were particularly amateurish in nature, it does not in any way detract from the inevitably grave effects of such offending on victims, and certainly did so, or appears to have done so, in the case of the applicant’s offending. The frequent, and in some cases lengthy sentences of imprisonment also reflect the gravity and seriousness of the applicant’s offending. As was contended by the respondent, prison is the last resort in the sentencing hierarchy and clearly reflects the objective seriousness of the applicant’s offending in each case where a prison term was imposed.
The applicant in his Statement of Facts, Issues and Contentions conceded that his offending is serious.[19]
[19] Paragraph 95 of the applicant's Statement of Facts, Issues and Contentions dated 13 October 2022 is referred to.
As the Tribunal, being the decision-maker, is required to do under the provision of paragraph 8.1.1(d) of Direction 90, consideration must be given to the frequency of the applicant’s offending. The applicant has engaged in a range of criminal offending, including crimes of violence, for a period of over 30 years. There has been a gradual trend of increasing seriousness. His armed robberies were not the most sophisticated, nor for that matter the most violent. However, he has several convictions for armed robbery where a similar modus operandi has been used. In that sense there has been a marginal trend of increasing seriousness.
Under paragraph 8.1.1(1)(e) of Direction 90, which the Tribunal as decision-maker must also have regard to, there is the cumulative effect of the applicant’s repeated offending. It has been noted already, and should be repeated, that there is of course the impact on victims who have been threatened and intimidated. Significant public resources have also been devoted to dealing with the applicant. These include police, courts and correctional services involved in the investigation and subsequent incarceration of the applicant as a result of his offending. There has been the application of prison medical and pharmaceutical services to address some matters that have arisen as a result of the applicant’s offending, such as the retainer of the Consultant Psychiatrist referred to after the applicant’s 2001 offending.
Another matter that the Tribunal as decision-maker is obliged to have regard to is prescribed in paragraph 8.1.1(1)(g) of Direction 90. That is whether the applicant has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of his migration status.
The applicant has received three formal warnings in writing from the Department (as named from time to time, including the Department of Immigration and Citizenship) about the consequences of further offending in terms of his migration status.
The first formal warning in writing was given to the applicant on 6 November 2003.[20] On 2 June 2004, a decision was made not to cancel the applicant’s visa.[21] It should be noted that the written notice of decision not to cancel the applicant’s visa contained a warning in the following terms, “[p]lease note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered”.
[20] Document G34 of the G documents.
[21] Document G35 of the G documents.
A second formal warning in writing was given to the applicant and 6 October 2006.[22] In August 2007 a decision was made not to cancel his visa.[23] Similarly, the written notice of the decision not to cancel his visa contained a warning in the same terms as the previous decision not to cancel the visa in June 2004.
[22] Document G32 of the G documents.
[23] Document G33 of the G documents.
A third formal warning in writing was given to the applicant on 25 February 2011.[24] On 10 August 2011, a decision was made not to cancel his visa.[25] The decision not to cancel the visa was conveyed by a letter which also contained a warning that the visa cancellation may be reconsidered if the applicant committed further offences or otherwise breached the character test in the future. An additional note, that disregard of such warning would weigh heavily against him if his case was reconsidered was also included.
[24] Document G 30 of the G documents.
[25] Document G 31 of the G documents.
With respect to the warnings received by the applicant and their effect upon him, the applicant did give some specific evidence. He said that when he received the first warning in November 2003, he was confused by it because, as noted earlier in these reasons, he believed himself to be an Australian citizen. He said that he did not have a lawyer at the time and that he did his best with his family to respond. When he was advised by the Department that a decision had been made not to cancel his visa, he believed the issue was resolved. Largely this approach was adopted by him with respect to the subsequent warnings.
Whilst the applicant’s explanation may, to some extent seem improbable, the Tribunal, having had the opportunity to observe the applicant in the witness box and form a view about his credibility, accepts it. In particular, the Tribunal accepts that the applicant genuinely believed that he had become an Australian citizen at the ceremony he attended with his parents at the Brisbane Town Hall on 2 October 1985. The Tribunal also accepts that the applicant genuinely believed he was an Australian citizen, until such time as the decision of the Federal Court of Australia made on 7 December 2021, where it was found that he was not an Australian citizen.
Nonetheless, despite whatever view the applicant had of his citizenship status, the fact that he continued to offend after being warned is of concern. This conclusion, however, must be viewed from the perspective that the applicant’s offending seems to have always occurred whilst under the significant influence of drugs and alcohol. Also, whilst significantly affected by drugs and alcohol, it seems more probable than not that the gravity of the warnings given to the applicant did not sink in.
In conclusion, with respect to this primary consideration, the Tribunal finds that the applicant’s offending is serious. It reiterates the matters that have been canvassed already at some length. There is the frequency of the applicant’s offending over a lengthy period of approximately 30 years; there were several lengthy terms of imprisonment, particularly for the crimes committed of armed robbery. He has committed crimes of a violent nature. There was the armed robbery committed against a woman. The cumulative effect of the applicant’s repeated offending has been acknowledged. Notwithstanding his explanation, there was the applicant’s continued offending since being formally warned. Therefore, this primary consideration must weigh against revocation of the mandatory cancellation of his visa.
Paragraph 8.1.2 of Direction 90 - The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 90 relevantly 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.
(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).
In undertaking the assessment required of this primary consideration, paragraph 8.1.2(2)(a) of Direction 90 requires the Tribunal to assess the nature of the harm should the applicant engage in further criminal or other serious conduct.
The Tribunal considers that the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct would be significantly psychological in character. It has been explained earlier in these reasons the effect that the applicant’s offending had on his victims when he committed the offences of armed robbery. They need not be repeated. It is salient to recall however, the observations of Judge White when sentencing the applicant on 30 October 2008, that it is common knowledge that those who are the victims of an armed robbery generally suffer psychological upset as a result of being subjected to frightening, and perhaps terrifying, circumstances.
Sight should not be lost with regard to the applicant’s offending invariably occurring when he has been under the influence of alcohol and/or drugs. His capacity for self-control when under the influence is severely inhibited. Although it has not occurred with his offending to date, in the context of committing armed robberies, there must be a risk that were he to commit an armed robbery in the future that there is a risk that the applicant may cause significant physical harm.
It should also be noted that the applicant, in his Statement of Facts, Issues and Contentions, conceded that if he were to offend in the ways he has done so previously, or engage in other serious conduct, it cannot be disputed that this would pose a risk to members of the Australian community.[26]
[26] Paragraph 104 of the applicant's Statement of Facts, Issues and Contentions dated 13 October 2022 is referred to.
Paragraph 8.1.2(2)(b) of Direction 90 requires the Tribunal to have regard to the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account information, evidence, the risk of reoffending, and evidence of rehabilitation.
There are several reasons why the applicant contends that on this occasion his risk of reoffending is comparatively low.
He has not taken drugs since he was arrested in 2015. In his evidence, the applicant said it was the longest period he had been off drugs since he was a 16-year-old. This evidence is accepted by the Tribunal.
As noted earlier, the Tribunal accepts the applicant’s evidence. It accepts that he has truly gained insight into his offending and its gravity. He is now in his mid-50s and has had the opportunity, over the last seven years, in which he has been either in prison or immigration detention, to reflect very deeply on what he has done with his life. He said that he has been looking at his life and realises that he needs to turn his life around. He says it has dawned on him to wake up to himself, and that he cannot go on living as he has. As he said in his evidence, “crime is not in my vocabulary anymore. I was a young, stupid, naïve individual. I have seen a better side to life”. One is prompted again to reproduce the observations of Judge Pilgrim, the last judge to sentence the applicant for his criminal offending in July 2016. His Honour observed:
You will recall that I mentioned the late father, Reverend Father Brosnan and how he made observations of those who are 45 onwards, finally wake up to themselves. He said they realise they have been a mug. I have explained why he used those words, and that you, generally speaking, are in that age group and finally realise, “I better change my ways. I’m not going to spend the rest of my life locked in gaol.” It is to be hoped that you now have finally seen the light and genuinely wish to rehabilitate from your past life of crime.
In the language of this passage from Judge Pilgrim (and perhaps Father Brosnan), the Tribunal considers that the applicant has finally woken up to himself. It also considers that he has finally seen the light and genuinely wishes to rehabilitate from his past life of crime.

Another factor relied upon by the applicant relates to the issues of drug and alcohol use. Further to his evidence that he has not consumed drugs since 2015 when he was arrested, the applicant stated that if he wished to obtain access to drugs whilst in prison or immigration detention, he could have obtained them. Although this is widely known, the applicant also referred the Tribunal to a publication “Drugs in Victorian Prisons Report” from Corrections Victoria, 2021-2022. That report revealed that in the Hopkins Correctional Centre, where the applicant was imprisoned between 2015 and 2021, recorded the highest targeted positive rate of drug tests undertaken in the years 2021-2022.[27] He gave evidence, which the Tribunal accepts, that he has not touched drugs since he was arrested in 2015. This is notwithstanding the temptations that were placed before him in the custodial environment.
[27] At Annexure 19 in the applicant's materials was a report from the Australian Human Rights Commission, "Inspection of Australia's Immigration Detention Facilities 2019". That report noted that during the Commission’s 2018 inspections of immigration detention facilities the staff continued to report concerns about the presence of illicit drugs in such facilities.
To corroborate his contention that he has not taken drugs since he has been in custody, the applicant refers to material subpoenaed from the Department of Justice and Community Safety.[28] Amongst those documents were the results of urine analysis test reports. Those documents reveal that between 23 July 2018 and 5 January 2021 the applicant was subjected to 11 random urine tests. All such tests were negative.[29] The urine analysis test reports also revealed that there was present a medicinal amount of methadone. The amount revealed was consistent with the doses of methadone administered to him as a participant in the methadone program which has been referred to earlier and was referred to by the applicant in the course of his evidence. It further establishes that the applicant has consistently and rigidly adhered to the course of treatment administered to him under that program.
[28] At Document SG3 of the SG documents pages 164 to 174.
[29] The urine analysis test reports were Annexure 4 to the applicant's materials.
To his credit, as part of an acknowledgement of his issues of drug dependency, the applicant has, undertaking his own research, identified that he would be able to participate in a methadone program in Mildura through the Sunraysia Community Health Services Drug Treatment Clinic. In evidence before the Tribunal concerning this service was a printout from its website which indicates that it offers specialised treatment to community members with drug and alcohol issues. It aims to support people and their families in identifying the patterns of drug and alcohol use, and to provide practical strategies to minimise the risks according to each individual’s needs. The applicant has undertaken that if he is released into the community, he would avail himself of this service. His father indicated he would also provide whatever assistance and encouragement he can to ensure that the applicant does so. The Tribunal considers that it is a step that would significantly assist the applicant to remain drug free.
The applicant gave evidence, which the Tribunal accepts, that another reason for him being a low risk of reoffending is that he has lost contact with, and does not intend to reconnect with, some of his more undesirable associates that he mixed with in the past. These people were a bad influence upon him, even though it must be emphasised that he accepted full responsibility for his offending. In this regard the support and assistance offered by his father will help in terms of discouraging him from reconnecting with persons who may otherwise be a bad influence or have been his co-offenders in the past.
Another factor relied upon by the applicant in support of his contention that he has rehabilitated himself arises from the variety of courses that he has undertaken whilst in prison, particularly between 2015 and 2021. The purpose of undertaking the courses were to give him skills and a better platform, or foundation, if he is returned to the community.
The courses undertaken by the applicant when he was in prison between 2015 and 2021 were as follows: [30]
[30] Annexure 14 of the applicant's materials "Corrections Victoria, Prisoner Education Summary Report" dated 5 October 2022 contains details of every course undertaken by the applicant whilst he was in custody.
(a)Certificate II in Hospitality - Follow Workplace Hygienic Procedures completed 12 January 2010;
(b)Certificate II in Transport and Logistics (Warehousing and Storage) - Shift Materials Safely Using Manual Handling Methods completed 31 December 2010;
(c)Certificate I in Textiles, Clothing and Footwear - Apply Quality Standards completed 24 October 2013
(d)Certificate I in Textiles, Clothing and Footwear - Organise and Plan Own Work to Achieve Planned Outcomes completed 24 October 2013;
(e)Certificate I in Textiles, Clothing and Footwear - Work in the Textiles, Closing and Footwear Industry completed 18 December 2013;
(f)Certificate I in Textiles, Clothing and Footwear - Follow Defined OH & S Policies and Procedures completed 18 December 2013;
(g)Certificate I in Vocational Preparation - Develop Study Skills completed 30 January 2014;
(h)Certificate II in Laundry Operations - Perform Tasks to Support Production completed 25 February 2014;
(i)Certificate II Laundry Operations - Work in a Team Environment completed 27 February 2014;
(j)Certificate I in General Education for Adults - Contribute to Health and Safety of Self and Others completed 20 March 2014;
(k)Education Services - Learning Plan, Vocational Assessment completed 8 June 2016;
(l)Certificate II in Information, Digital Media and Technology - Operate Application Software Packages completed 22 December 2017;
(m)Education Services - Learning Plan, Vocational Assessment completed 15 May 2019;
(n)Educational Services - Language, Literacy and Numeracy completed 24 September 2019;
(o)Education Services - Learning Plan Review completed 19 May 2021; and
(p)Moderate Intensity Violence Intervention Program completed 17 June 2020.[31]
[31] Certificate of completion of Moderate Intensity Violence Intervention Program found at document G23 of the G documents.
The Tribunal observes that these courses were quite detailed with individual units making up each such course. On most occasions, the applicant achieved a pass level of competency. The Tribunal is also satisfied that the applicant undertook these courses in a genuine endeavour to rehabilitate himself.
The applicant gave evidence about the Moderate Intensity Violence Intervention Program, which is worth briefly referring to for the purposes of assessing the evidence of the applicant’s rehabilitation. The course itself ran for approximately nine months. It contained various sessions and risk factors and risks of reoffending. The courses were undertaken in a group environment where each participant is required to talk to the group about specific risk factors that he faces. There are role-playing functions undertaken. The applicant explained that in participating this way he did explain to the group that he had identified drug and alcohol issues as a significant problem. He described the process as very intense and very emotional. It was also explained by him that there was much emphasis on what he called “remorse factors” and about feelings for the victims. Each participant’s performance is then subjected to corrective feedback from the group, and its facilitator, which the applicant said he found highly beneficial. This is understandable. The applicant also explained that he had not undertaken a program of this length before when he had been in prison. He explained to the Tribunal how there was a great deal of learning involved and that he gained much from it, including an insight into his emotions and what had caused him to offend. He described it as seeing the bigger picture in the mirror through a prism of being older and wiser. The Tribunal has no doubt that the applicant gained much benefit from participating in this course, and that what he learned from it will be a powerful factor in reducing his risk of reoffending.
Another reason advanced by the applicant in submissions that he is a low risk of reoffending, arises from the significant health conditions in which he suffers. The Tribunal agrees. Given all the health conditions from which the applicant suffers, that have been outlined earlier, it is fair to say that his condition is fragile. He is far less able to physically exert himself as he did when he previously offended. It would be physically very difficult for the applicant to commit an armed robbery in the way he has done in the past. Additionally, by reason of his health conditions, the applicant has expressed a desire to live a quiet life with his father. The Tribunal agrees with these submissions and considers it gives rise to a comparatively low risk of him reoffending.
There was also the evidence of the applicant’s father who was, as noted earlier, an impressive witness. He has offered continuing support to the applicant. His father stated that he would try to help the applicant as much as possible to assist him in staying away from drugs. He gave evidence that he would like the applicant, if released into the community, to come and live with him. He has a two-bedroom unit which would be suitable for the applicant to reside in. Both the applicant and his father gave evidence to the effect that if the applicant were to live with him, he could attend to household needs, care for his father and undertake tasks such as shopping and cleaning.
Finally, a further factor which would be a powerful influence upon the applicant, so as to reduce the risk of reoffending, arises from the recent steps that he has made to reconnect with his children and grandchildren. The applicant gave very persuasive evidence that the recent contact he has made with his daughter has been a source of much satisfaction to him. He genuinely wishes to re-establish a relationship with both his son and daughter if he is released into the community. He appreciates that, after having been separated from them after all these years, achieving these intentions will be challenging. Nonetheless, it is his heartfelt desire to establish what he described as “a proper relationship with them”. He wishes to see his grandchildren and participate in their lives. He described this desire to establish a relationship with his children and grandchildren as very important to him, as no doubt it is. He knows full well that if he were to reoffend or descend into a life of drugtaking and alcoholism then there would be absolutely no hope of such an objective being achieved.
By reason of the foregoing matters the Tribunal finds that there is a very low risk of the applicant reoffending were he to be released into the community. Therefore, the Tribunal places limited weight on this primary consideration against revocation of the mandatory cancellation of the applicant’s visa.
Primary consideration 8.2 of Direction 90 – Family Violence
Both parties agree that there is no evidence before the Tribunal to demonstrate that the applicant has been charged with, convicted of, or otherwise engaged in acts of family violence within the meaning of this paragraph of Direction 90.[32] Accordingly, it does not attract any weight.
Primary consideration 8.3 of Direction 90 - Best interests of minor children in Australia affected by the decision
[32] Paragraph 124 of the applicant's Statement of Facts, Issues and Contentions dated 13 October 2022 is referred to. Paragraph 31 of the respondent’s Statement of Facts, Issues and Contentions dated 26 October 2022 is also referred to.
This paragraph of Direction 90 requires the Tribunal, as decision-maker, to determine whether this non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The consideration applies only if the child is, or would be, under 18 years old at the time when the decision not to revoke the mandatory cancellation of the visa, is expected to be made.
Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
There are several factors identified in paragraph 8.3(4) of Direction 90 that the Tribunal must consider where relevant in determining the best interests of the child concerned. The exact language of this paragraph is referred to for its full force and effect. However, the relevant considerations contained in that paragraph may be summarised as follows:
(a)the nature and duration of the relationship between the child and the applicant. 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;
(b)the extent to which the applicant is likely to play a positive parental role in the future;
(c)the impact of the applicant’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 applicant would have on a child, taking into account the ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil the 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; and
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
As noted previously, the applicant’s daughter has two children. There was little evidence before the Tribunal concerning these children. They are under the age of 18 years, so this consideration applies. There is no existing relationship between the applicant and his grandchildren, and he has never met them. Accordingly, as prescribed by paragraph 8.3(4)(a) of Direction 90, less weight should generally be given to this consideration.
The applicant gave evidence that he wants to be an active grandfather involved with his grandchildren. He contends that it would be in his grandchildren’s best interests for them to experience a meaningful connection with a key member of their family. It is also submitted by the applicant that it would be in the best interests of the grandchildren to have the opportunity to meet their grandfather and learn about their heritage. Provided the applicant can remain drug and alcohol free, the applicant could play a positive role as a grandparent to his grandchildren in the future. It does, however, involve a degree of speculation at this stage.
It should be observed, as the relevant paragraph of Direction 90 requires the decision-maker to do, that the impact is the applicant’s prior offending has been that he became completely estranged from his family and has had no contact with his children for years, and no contact at all with his grandchildren. Any likely future conduct of the same type would, as noted earlier, invariably mean that all contact with his children and grandchildren would immediately cease.
However, the Tribunal considers that although there has been no contact in the past, it is desirable for the applicant to be able to reconnect with both his daughter and her children in a meaningful way. Therefore, the Tribunal considers that this consideration weighs moderately in favour of revocation of the decision to cancel the visa.
Primary consideration 8.4 of Direction 90 - Expectations of the Australian community
Paragraph 8.4 of Direction 90 “Expectations of the Australian Community” 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) 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;
(b) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
This primary consideration and its application has been the subject of much judicial comment over several years. The applicant referred to a very helpful passage from a decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection[33] which provides guidance as to its application. The judge observed:
In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks our expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only on one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[33] [2017] FCA 1466 at [76].
Also referred to in submissions was the often-cited case of FYBR v Minister for Home Affairs (“FYBR”).[34] In that case, at paragraphs [75]-[77], Justice Charlesworth found, amongst other things, that the paragraph of the applicable Direction “…should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused”. She also found that, “[t]he question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion”.
[34] [2019] FCAFC 185.

Were the applicant to succeed in obtaining paid employment, which the Tribunal considers is unlikely, the economic conditions in Turkey are parlous to say the least. Any income he earns by way of wages and salaries will not go very far. An article was in evidence before the Tribunal that revealed that inflationary pressures have reached remarkable levels, and as at January 2022 consumer price inflation had topped 48% according to the government’s statistics office. This was the highest level in two decades. The article stated that “[n]o matter how you measure it, the purchasing power of Turks has been decimated”.[43]
[43] Annexure 31 of the applicant's materials “Aljazeera”, 15 February 2022, "As turkeys inflation rate climbs, workers strike for pay hikes".
There seems to be a genuine doubt as to whether the applicant would qualify for any social security or unemployment benefits in the event of his return to Turkey. Given he has no prior connections with the country or previous employment history there, it will pose a significant impediment to enable him to establish himself and maintain basic living standards (in the context of what is generally available to other citizens of that country).
Amongst the materials tendered in evidence before the Tribunal on the applicant’s behalf was an extract from the OECD Tax-Benefit Model for Turkey, “Description of Policy Rules for 2020”.[44] This extract recorded that eligibility requirements for unemployment assistance programs often include conditions and previous work history and/or exhaustion of previous unemployment insurance entitlements. Unemployment assistance benefits are usually non-contributory and means tested, that is, receipt is conditional on the family’s income and assets being below a certain level.
[44] Annexure 32 of the applicant's materials.
Another document that was in evidence before the Tribunal emanated from the Social Security Administration of the United States. That document explained the regulatory framework, coverage and qualifying conditions with respect to unemployment benefits in Turkey.[45] The applicant submits, and the Tribunal agrees, that the qualifying conditions are onerous. It explains as follows:
Qualifying Conditions
Unemployment benefit (Issizlik odeneginden): Must have paid contributions in the last 120 days of employment and have at least 600 days of paid contributions in the three years before unemployment. The claim for the unemployment benefit must be made within 30 days after the labour contract expires or is terminated.
The unemployed person must be registered and available for suitable employment.
Unemployment Benefits
Unemployment benefit (Issizlik odeneginden): The minimum daily benefit is 40% of the insured’s average daily earnings in the last four months. The benefit is paid for up to 180 days with at least 600 days of paid contributions; 240 days with at least900 days of paid contributions; and 300 days with at least 1,080 days of paid contributions.
The maximum monthly unemployment benefit is 80% of the gross legal monthly minimum wage.
[45] Annexure 33 of the applicant's materials.
On any proper construction of the Qualifying Conditions as noted, the applicant would not be entitled for a Turkish unemployment benefit. As he contends, he would not satisfy the qualifying conditions and requirements as he has not paid the necessary contributions and is not otherwise able to prove previous employment in Turkey. This, therefore, means that he would not be able to establish himself, or more probably than not, maintain basic living standards in the context of what is generally available to citizens of Turkey.
Another matter that arises with respect to this consideration is the question of medical and hospital support that would be open to the applicant in the event that he was returned. Turkey does provide universal health care under its Universal Health Insurance system. In the materials before the Tribunal, it was apparent that the state-run hospitals are still suffering the effects of poor funding, resulting in critical shortages of medical personnel as well as outdated and poorly maintained equipment. It appears that whilst doctors in the public sector are well-trained, treatment options can be limited due to the lack of necessary medical supplies. It is also observed in the material that many of the doctors do not speak English. There are also problems concerning overcrowding and lengthy waiting periods.[46]
[46] Annexure 35 of the applicant’s materials, Guides Global, "Health care in Turkey".
Also, by way of completeness, as the applicant would be effectively destitute were he returned to Turkey, he would not be able to access the private healthcare system which offers a higher standard of care overall than the state-run system.
Of additional concern, with respect to the applicant’s health conditions, are that patients have to pay in the state system part of the cost of drugs prescribed. Currently, that contribution is 20% of the total cost of the medicine concerned.[47] There was no evidence as to what the cost of medication is in Turkey. However, it seems more probable than not that it is likely to be more expensive than in Australia. If, as seems likely, the applicant will have no income because he is unable to obtain employment and does not qualify for unemployment benefits, it seems to the Tribunal that he will not have complete access to all the drugs and medication he requires. Assuming that such medication is otherwise available, which at the very least seems doubtful, It is unlikely that he will not have the funds to pay for it. It will be recalled that he takes a significant quantity of medication every day. The respondent has acknowledged that it is unclear whether the applicant will be able to access medicine if he does not qualify for social services in Turkey.[48] This medication, particularly with respect to his heart conditions, is essential for him to continue to survive. Given this reality, the applicant will not, with respect to access to necessary medications, be able to establish himself in the context of what is generally available to other citizens of Turkey.
[47] Annexure 37 of the applicant's material UH I Commissioner for Refugees, "Medical and Psychological Assistance".
[48] Paragraph 50 of the respondent’s Statement of Facts, Issues and contentions dated 26 October 2022.
In terms of the medical support that the applicant needs, in particular to address his heart conditions, there must be a serious doubt as to whether he will have access to the high level of interventional cardiology treatment from suitably qualified medical specialists that he requires, from the state health care system in Turkey. Clearly, he will not be able to access the more appropriately resourced private health care system. Without access to this treatment and appropriate medication at all times, there is a real risk that the applicant will not be able to survive.[49] It is in this setting that the applicant will simply not be able to receive the standard of health care that his conditions require if he is returned to Turkey. Certainly, it appears that he would not be able to obtain all the health care that he needs given what is generally available to other citizens of Turkey.
[49] At paragraph 86 of his witness statement dated 12 October 2022 the applicant stated, "[w]ithout the high level of public health care that I have been privileged to receive in Australia, I do not think I could survive for long". Given the material that is before it, as explained, the Tribunal considers that this is a realistic not a fanciful or speculative conclusion.
Finally, with respect to this consideration, the applicant has referred to his mental health conditions. It has previously been noted that the applicant has a history of anxiety and depression. He contends, understandably, that if he is returned to Turkey it is more probable than not that his symptoms of anxiety and depression will be exacerbated or deepened. This will increase the likelihood that he will need specialist treatment for these conditions, including psychiatric intervention. The Tribunal considers that it is likely that these contentions will prove to be correct in the event that the applicant is returned Turkey.
Access to psychiatric treatment in Turkey under the national policy is difficult. Mental health services were shifted to a community-based system in 2006 through a series of what are known as community mental health centres that operate throughout Turkey. The most recent Department of Foreign Affairs and Trade Country Information Report for Turkey records that community mental health centres are inadequately funded and the number of psychiatrists and other mental health professionals per capita is well below European Union averages. It appears that community mental health centre staff are poorly trained and paid, leading to high turnover and poor service. Many patients are ultimately forced to pay directly for the treatment, which has produced a de facto two-tiered system.[50]
[50] DFAT Country Information Report, September 2020, at [2.23] – [2.24], Annexure 30 two the applicant's materials.
The reasons that have been articulated earlier mean that the applicant would have no prospect of being able to pay for mental health treatment under the de facto two-tiered system. Therefore, he would be required to avail himself of the community mental health centre nearest to where he resides. Given the apparently poor level of service that these centres provide, it is highly likely that he will not receive any treatment, or any adequate treatment, of his mental health conditions. Whilst this fate also is one faced by other citizens of Turkey it is nonetheless a significant impediment in the event that the applicant is removed.
By reason of the foregoing matters, this other consideration must weigh extremely heavily in favour of revocation of the decision to mandatorily cancel the applicant’s visa. The Tribunal considers that given the unique health problems, together with the language and cultural barriers faced by the applicant were he to return to Turkey, this other consideration should be elevated to attract the outmost weight. Although paragraph 7(2) of Direction 90 provides that primary considerations should generally be given greater weight than the other considerations, the Tribunal considers the unique situation facing the applicant is such that, on this occasion, the exception should be applied, and this consideration should be accorded weight in the same way as a primary consideration.
Paragraph 9.3 of Direction 90 - Impact on victims
No evidence was placed before the Tribunal concerning the impact on victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.
Paragraph 9.4 of Direction 90 - Links to the Australian community
Paragraph 9.4.1 of Direction 90 - The strength, nature, and duration of ties to Australia.
Paragraph 9.4.1 of Direction 90 states as follows:
(1) Decision-makers must consider any impact of the decision on the noncitizen’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.
(2) Where consideration is being given to whether to cancel a noncitizen’s Visa or whether to revoke the mandatory cancellation of the Visa, the decision-maker must also consider the strengths, nature and duration of any other ties that the noncitizen as to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the noncitizen has resided in Australia, including whether the noncitizen arrived as a young child, noting that:
(i) less weight should be given where the noncitizen began offending soon after arriving in Australia; and
(ii) more weight should be given to the time the noncitizen 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.
Several facts that are applicable to this other consideration have already been articulated in these reasons. However, they should be repeated. The applicant arrived in Australia in 1969 when he was approximately four months old. Save for the two brief trips to Turkey referred to previously, the last one of which was in 1986, he has resided continuously in Australia. He contends, and the Tribunal agrees, that having spent almost his entire life in Australia in the experiences, together with the exposure that he has had here, has really shaped who he is. He is for all intents and purposes an Australian.
All his immediate family are present in Australia. His father, who is 78 and an occupant of public housing in Mildura, is resident here. His brother and two sisters are also present here. He has two adult children, and two grandchildren also present in Australia. All his siblings have children in Australia. By reason of these facts, his connections to this country are particularly strong.
The strongest contact that the applicant has with a member of his family is his father, who gave evidence at the hearing of this application. Throughout all of the applicant’s criminal offending his father, and his mother when she was alive, have steadfastly stood by him. This was noted by several of the sentencing judges whose Reasons for Sentence were in evidence before the Tribunal.
More recently, when the applicant was released into immigration detention his father arranged for the purchase of a phone for him. They now speak by means of phone communication every day. Additionally, the applicant’s father gave evidence that he gives what limited money he can to the applicant out of his old age pension, usually $20-$40 per fortnight, to assist him. He has, as noted earlier, offered to provide the applicant with accommodation if he is released into the community in a spare bedroom in the unit that he occupies in Mildura.
It must be acknowledged that the contact that the applicant has had with several immediate members of his family over many years has been limited. He has not been in contact with his sisters for a long time. The last time he had contact with his brother was when he was living in Shepparton in approximately 2015, shortly prior to his most recent imprisonment. His brother now lives in Melbourne. In the event that he is released into the community, the applicant wishes to reconnect with such members of his family if he is able to.
In terms of the applicant’s contribution to the Australian community, the applicant relies upon the fact that he did qualify as a cabinetmaker and worked as such for some time during his early adult years. He submits that, notwithstanding his subsequent offending, he did make some contribution in the past to the community by reason of his work as a cabinetmaker. The Tribunal acknowledges this fact.
It is also acknowledged that the applicant lived in the Australian community for approximately 20 years before his first offence. This does, to some degree, weigh in the applicant’s favour.
Although limited weight can be placed upon the fact, it should be repeated that the applicant’s connections to this country were strong enough at one stage to enable him to be included on the electoral roll and called up for jury duty. Whilst how this occurred must remain a mystery, it certainly shows that to some level, his ties to Australia and its institutions were strong.
In terms of the weight to be attached to this consideration, the respondent submitted that given the fact that the applicant arrived in Australia aged four months and has remained in Australia since that time, the Tribunal should give this consideration weight in the applicant’s favour.[51] It was not submitted on behalf of the respondent precisely what weight should be placed on it.
[51] See paragraph 54 of the respondents Statement of Facts, Issues and Contentions dated 26 October 2022.
The Tribunal considers that given the facts of this case extremely heavy weight should be placed upon this other consideration. It repeats that the applicant has long, relatively extensive and strong ties to Australia. He has grown up as an Australian, lived here most of his life and all his immediate family, who are Australian citizens, are here, even if his connections with some of them have been severed over many years.
Paragraph 9.4.2 of Direction 90 - Impact on Australian business interests
No evidence was advanced with respect to this consideration and therefore no weight will be attached to it.
CONCLUSION AS TO WHETHER TO EXERCISE THE DISCRETION TO REVOKE THE MANDATORY CANCELLATION OF THE APPLICANT’S VISA
The exercise the Tribunal is required to undertake in deciding whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa is finally tuned.
With respect to the primary consideration 8.1 of Direction 90 “Protection of the Australian community”, different weightings have been applied to its constituent parts.
Paragraph 8.1.1 of Direction 90 “The nature and seriousness of the applicant’s conduct” must weigh against revocation of the mandatory cancellation of the visa. Considerable detail has been provided in these reasons about the nature and history of the applicants offending, which took place over many years and did involve acts of violence on several occasions when he committed armed robberies, not to mention other offences such as intentionally causing injury.
However, with respect to paragraph 8.1.2 of Direction 90 “The risk to the Australian community” should the applicant commit further offences or engage in other serious conduct, the Tribunal has concluded that there is a very low risk of the applicant reoffending were he to be released into the community. By reason of the finding that the applicant is at low risk of reoffending, for the reasons articulated, the Tribunal places very limited weight on this element of this primary consideration.
It must be repeated that in reaching this conclusion the Tribunal has found that the applicant not only acknowledged the nature and seriousness of his offending, but has also gained complete insight into it, and more particularly, how it came about due to his misuse of alcohol and drugs.
Moderate weight in favour of the applicant was placed on primary consideration 8.3 of Direction 90 “Best interests of minor children in Australia”. Although there has been no contact with his grandchildren, it is to be encouraged and the prospect of such contact in the future is likely going to be a powerful force for good in the applicant’s life.
With respect to primary consideration 8.4 of Direction 90 “The expectations of the Australian community”, for the reasons explained the Tribunal has placed very limited weight upon this primary consideration against revocation of the mandatory cancellation of the applicant’s visa.
Limited weight is placed in favour of revocation of the cancellation of the applicant’s visa under paragraph 9.1 of Direction 90 “International non-refoulement obligations”.
Under paragraph 9.2 of Direction 90 “Extent of impediments if removed”, extremely heavy weight is placed in favour of revocation of the decision to mandatorily cancel the applicant’s visa.
Similarly, extremely heavy weight is placed upon paragraph 9.4 of Direction 90 “Links to the Australian community”.
In terms of weighing up the considerations that apply in favour for or against revocation of the decision to mandatorily cancel the applicant’s visa, as noted in this case extremely heavy weight has been attached by the Tribunal to the extent of impediments if removed and to the applicant’s links to the Australian community. Moderate weight has been attached to the best interests of minor children. More limited weight was attached to an international non-refoulement obligation that was found to be owed to the applicant.

Given that the Tribunal has concluded that there is a very low risk of the applicant reoffending were he to be released into the community, the Tribunal finds that the weight attached to the primary considerations of the “protection of the Australian community” and the “expectations of the Australian community” do not outweigh the collective weight attached to those considerations which have been found to be in the applicant’s favour.
In attributing collectively the weight that it does to the considerations in favour of the applicant, the Tribunal also takes into account the provisions of paragraph 5.2(4) of Direction 90 that provides Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age. This principle is apposite to the circumstances facing the applicant. Particularly, given the length of time that the applicant has been in Australia from the age of four months, that he is for all intents and purposes an Australian, and that his family, even though he is estranged from some of them, are here, not to mention his significant health conditions, all of which have been treated to a very high level and standard in this country, justify the exercise of a higher level of tolerance towards him.
DECISION
For the reasons outlined above, the Tribunal is satisfied that under s 501CA(4)(b)(ii) of the Act there is another reason why the mandatory cancellation of the applicant’s visa should be revoked.
Accordingly, the reviewable decision is set aside and in substitution the Tribunal decides under s 501CA(4)(b)(ii) of the Act that the mandatory cancellation of the Applicant’s Class BF transitional (Permanent) visa is revoked.

208. I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

...................[sdg]...............................
Associate
Dated: 21 November 2022

Dates of hearing:
2 and 3 November 2022

Counsel for the Applicant:

Solicitor for the Applicant

Advocate for the Respondent:

Mr Gabriel Chipkin

Carina Ford Immigration Lawyers

Mr Adam Cunynghame

Solicitor for the Respondent: Sparke Helmore

[2022] AATA 3934

21 November 2022

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