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

Zyambo and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2473 (27 July 2020)
Division:GENERAL DIVISION
File Number(s):2020/2790
Re:Kondanani Zyambo
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:27 July 2020
Place:Brisbane

The decision under review is affirmed.
........................ [SGD]................................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of an Employer Nomination Scheme (Permanent) (Class BW) (Subclass 856) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
27 July 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 35 year old citizen of Zambia. In 1995, when he was 9 years old, he moved with his parents and sister to Australia. The most recent visa granted to him was a Class BW Subclass 856 Employer Nomination Scheme (Permanent) Visa (“the visa”).[1]
[1] Exhibit G1, G-documents, G13, page 235.
The Applicant commenced committing criminal offences in 2002.
In March 2006 the Department of Home Affairs (“the Department”)[2] sent the Applicant a notice of intention to consider cancellation of his visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).[3] In September 2006, the Respondent sent the Applicant a letter notifying him of a decision under s 501(2) of the Act not to cancel his visa.[4] The letter contained a warning that any further convictions would lead to the reconsideration of his visa cancellation and that disregard of that warning would weigh heavily against him if the Minister or his or her delegate reconsidered his case. In May 2007 the Department sent the Applicant a “Formal Counselling Letter” warning that further conduct could result in consideration of the cancellation of his visa or refusal of any future visa application under s 501 of the Act.[5] The Applicant claims that he did not receive any of these letters as they were sent to an address where he no longer resided. I accept this as it accords with the evidence that the Applicant was, for much of his adulthood, itinerant or homeless.
[2] At that time the Department was known as the Department of Immigration and Citizenship.
[3] Exhibit G1, G-documents, G2, pages 103 to 104.
[4] Ibid, pages 101 to 102.
[5] Ibid, page 100.
In November 2015, a delegate of the Minister (“the Respondent”) decided to mandatorily cancel the Applicant’s visa under s 501(3A) of the Act on the basis that he did not pass the character test, and sent him written notification of that decision. As a result, he spent some time in Immigration Detention. In April 2016, the Respondent revoked the mandatory cancellation under s 501CA(4) of the Act.[6] The written notification of the revocation contained the warning:
“Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.”
[6] Ibid, pages 97 and 98.
The Applicant was aware of this warning.[7] Section 501CA(5) of the Act provides that if a decision is revoked, it is taken not to have been made.
[7] Ibid, page 99; transcript, page 33, line 42 to page 34, line 3.
In October 2018, the Respondent again decided to mandatorily cancel the Applicant’s visa under s 501(3A) of the Act on the basis that he did not pass the character test, and sent him written notification. In June 2019, the Respondent revoked the mandatory cancellation under s 501CA(4) of the Act.[8] The written notification of the revocation contained the warning:
“Warning: if you engage in further criminal or other serious conduct, this may again result in your Visa being cancelled on character grounds.”
[8] Ibid pages 94 and 95.
The Applicant was aware of this warning.[9]
[9] Ibid, page 96; transcript, page 34, lines 5 to 21.
On 15 October 2019 the Applicant was convicted of multiple offences and sentenced to an aggregate term of imprisonment for five months.[10]
[10] Ibid, pages 27 to 29.
This led to the Respondent, again, deciding to mandatorily cancel the Applicant’s visa under s 501(3A) of the Act on 29 October 2019 on the basis that he did not pass the character test and that he was serving a sentence of imprisonment on a full-time basis.[11] In November 2019, the Applicant made representations as to why the decision should be revoked (“the revocation request”).[12] On 4 May 2020, the Respondent decided not to revoke the visa cancellation (“the Decision under Review”).[13]
[11] Exhibit G1, G-documents, G2, pages 60 to 66.
[12] Ibid, pages 69 to 86.
[13] Ibid, pages 10 and 11.
The Applicant lodged an application with this Tribunal in May 2020 seeking a review of the Respondent’s decision not to revoke the mandatory cancellation.[14] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[14] Ibid, page 3.
The hearing of this application proceeded on 8 July 2020. The Applicant gave evidence by videoconference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because
of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this section provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[15]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[16]
[15] [2018] FCAFC 151.
[16] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[17]
[17] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant was sentenced to a period of 12 months imprisonment in October 2006. The sentence was ordered to be suspended after the Applicant served six months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[18] Accordingly, the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.[19] He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[18] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides:
[19] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 8.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
(1)Informed by the principles in paragraph 6.3 above, a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[20]
[20] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[21] and “Other considerations”.[22] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[21] Ibid, paragraph 13.
[22] Ibid, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
a)International non-refoulement obligations;
(d)Strength, nature and duration of ties;
(e)Impact on Australian business interests;
(f)Impact on victims; and
(g)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[23]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[24]
[23] [2018] FCA 594.
[24] Ibid, at [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(a)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(c)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(d)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(e)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(f)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(g)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
In March 1995, the Applicant moved to Australia with his parents and younger sister when he was nine years old. He did well in school and extracurricular activities.
In 1999, the Applicant’s parents separated. He took it hard: he was very angry at his father, and there were many nights when he went to bed to the sound of his mother and sister weeping. His mother, his sister and he moved to another area of Brisbane and he enrolled in a different high school. He said it was a difficult time for him because he was learning more about sexuality and at times he felt he was not normal as he only had one testicle (the other having been removed some years earlier for medical reasons).
In high school, the Applicant continued to do well at school and in extracurricular activities. In 2000, as a result of peer pressure, the Applicant smoked some cannabis with a friend and, according to him, he has battled drug addiction since that day. He said that every time he met up with this friend, cannabis was involved. By the end of grade 10, he was addicted to cannabis.[25] His grades subsequently dropped dramatically. In around 2001 or 2002, the Applicant’s mother became aware of his drug use and unsuccessfully tried to stop him. In mid-2002, the Applicant dropped out of school.
[25] Exhibit G1, G-documents, G2, page 88.
In October 2002, the Applicant was caught in possession of a knife, and in November 2002 he was caught in possession of “dangerous drugs”.[26] I take that to be cannabis, given the Applicant’s evidence that he only used cannabis at that time. There is no information before me as to why the Applicant had the knife.
[26] Ibid, page 35.
In January 2003, the Applicant’s mother sent him to Zambia, according to the Applicant “in hopes my father could straighten me up”.[27] The Applicant stayed with his grandfather in Zambia and in the 15 months that he was there he saw very little of his father. For the most part, in Zambia, the Applicant abstained from drugs. He occasionally used cannabis but not on a daily basis.[28] He said he suffered withdrawal symptoms, but he dealt with these by going for walks on the farm where he was staying, and he got himself two puppies so that he generally kept himself active.[29]
[27] Ibid, page 89.
[28] Transcript, page 38, lines 21 to 24.
[29] Transcript, page 39, lines 1 to 7.
In March 2004, the Applicant returned to Australia, only to find out that his mother and younger sister were planning to move to Canada as they had been granted Australian citizenship. A matter of weeks after he arrived in Australia, they departed. He felt “alone, abandoned”.[30] He had no family to live with, and he found his own accommodation. He quickly returned to using cannabis.[31]
[30] Exhibit G1, G-documents, G2, page 8.
[31] Ibid, G2, page 89.
In October 2004, the Applicant was caught in possession of dangerous drugs and utensils or pipes. In November 2004 he committed a trespass and he contravened a direction or requirement. He continued to commit offences relating to his possession of dangerous drugs, possession of items relating to drug use or his failure to properly dispose of a needle or syringe. He also committed numerous offences arising from his failure to attend court in accordance with a bail undertaking. In addition, there was some more serious offending – detailed below.
By 2005, the Applicant had been introduced to methamphetamine. He said he was vulnerable, with little confidence and low self-esteem, and he participated in “drug taking and various illegal activities”.[32]
[32] Exhibit G1, G-documents, G2, page 89.
In July 2006, the Applicant committed the offence of unlawful use of motor vehicles aircraft or vessels.
In September 2006, the Applicant committed the following offences:
1.unlawful use of motor vehicles and aircraft or vessels;
2.stealing; and
3.unlawful entry of vehicle for committing indictable offence at night in company.
Between 31 August and 25 September 2006, the Applicant committed six offences of unlawful entry of vehicle for committing indictable offence.
In October 2006 he was convicted of all these offences and sentenced to 12 months imprisonment, suspended after six months for two and a half years.[33] The facts of this offending are not contained in the materials before the Tribunal. However, when passing sentence, the learned to sentencing Magistrate said, in relation to those offences:
“… there is (sic) a lot of people out there in the community that you have caused untold heartache to. And…no doubt, that there are many people who are members of the community out there who will be saying, well, I hope when they caught these persons the court is going to throw the book at them…The imprisonment order is the only order that I consider appropriate in the present circumstances to deal with the extent of your criminal activity and the amount of people that you have put out by your activities.”[34]
[33] Ibid, page 34.
[34] Ibid, G2, page 58.

This was the Applicant’s first sentence of imprisonment. While he was imprisoned, he had a job and he did not incur any incidents. Upon release he moved to a different part of Brisbane so that he would be away from old influences. He spent some time with his sister before renting a room with two men who he initially thought could help him. However, these men were heavily involved in drugs and criminal activity.
On 14 January 2008, the Applicant was charged with various offences relating to the possession, supply, and trafficking of dangerous drugs, and some other offences relating to drug related items. He was released on bail. He subsequently breached his bail conditions (while still subject to a suspended sentence) and was remanded in custody. In September 2008, the Applicant was ultimately convicted of supplying dangerous drugs along with three offences of possessing dangerous drugs (as well as offences relating to drug paraphernalia). For the supply and possession offences he was sentenced to six months imprisonment (with the time he had already served on remand to count towards his serving of that sentence).[35]
[35] Ibid, page 34
The Applicant’s explanation of these offences is that the drugs belonged to his housemates and none of them were his. He said that there were no drugs in his room, but all occupants of the house were charged with drug offences. He said he was persuaded to plead guilty to the supply of a “stick” of cannabis although he denies even possessing, let alone supplying, drugs. There are no police records in the Tribunal materials relating to this offending however there are sentencing remarks. In passing sentence, the learned Magistrate said:
“Your history has other offences of possession of dangerous drugs on it. In my view, the most serious of the charges that you’re facing here today is supply charges, and it’s – certainly the facts suggest that it was not an isolated incident, and I consider that a term of imprisonment more than the 87 days that you’ve served is required.”[36]
[36] Ibid, page 55.
The Applicant was asked what he thought the Magistrate meant by “the facts suggest that it was not an isolated incident” and it was suggested that the Magistrate meant that the Applicant had previously engaged in the supply of drugs. The Applicant denied this, saying:
“Not quite sure with that. I imagine it would have been with the possession of drugs, it wouldn’t have been an isolated incident. I’ve only been charged with supply of dangerous drugs at that point, which most of the charges were dropped.”[37]
[37] Transcript, page 18, lines 1 to 5.
As there are no additional convictions for supplying dangerous drugs, I am reticent to find that this conviction was not an isolated incident. Similarly, I am reticent to go behind the conviction and accept the Applicant’s claim that he was not involved in the supply of drugs on that occasion without strong evidence in support of his claim. I find that the Applicant was involved in the supply of a small amount of cannabis.
In passing sentence, the learned Magistrate warned the Applicant about his involvement with drugs in the following manner:
“I take into account your pleas of guilty to these charges, which are…all related to drugs. Drugs destroy people’s lives, and I suspect that, sadly, it’s heading that way with you unless you can do something very significant about trying to address your drug problem. I note that you’ve not had a particularly happy upbringing and that that sometimes has a significant effect on people as they move into adulthood, but you get to a point in life where you are the adult. You have to take responsibility for your actions and get past the bad things that have happened. These offences have occurred during a period when you were on a suspended sentence, when one would have thought that you’d be really thinking very hard about, “Do I want to go back to prison?”, and you’ve made very bad choices. I’m told that you have the support of members of the Zambian community, who are prepared to assist you when you are released.”[38]
[38] Exhibit G1, G-documents, G2, page 55
During this period of incarceration, the Applicant worked in the laundry and did not incur any incidents. Upon release, he once again attempted a fresh start. In 2009, he was diagnosed with depression and anxiety, and prescribed medication. He has taken that medication “on and off” for the past 10 years. While the medication helped, he went back to using cannabis. In August 2009 he was caught in possession of dangerous drugs, and in December 2009 he was convicted and sentenced in the Drug Court to 3 months imprisonment, wholly suspended so that he could undergo intensive drug rehabilitation.[39]
[39] Ibid, page 34.
The Applicant said that he initially attended the drug rehabilitation program, and undertook urine tests, while living in his own accommodation. However, after six weeks he had a lapse and was required to move to shared accommodation near to the venue. He said his housemates used drugs and he did not feel physically safe around them. After around six weeks he exited the program because of that. In February 2010, the intensive drug rehabilitation order was vacated, and the Applicant was required to serve the sentence of three months’ imprisonment.[40]
[40] Ibid, page 33.
After his release from gaol, he moved to a new area, stayed with a friend, and successfully completed his parole. He obtained employment as a tyre fitter and was good at that job. Apart from a conviction in 2013 (which I will address shortly), the Applicant did not commit any offences between September 2009 and October 2014. When asked if this period of good behaviour was attributable to his medication he said:
“I had a diagnosis, I was understanding a bit more about the medication. I also just finished a six month – was it three or six month sentence in 2008? Finally I actually relocated – every time I actually got released from gaol I pretty much did not go back to the same neighbourhood, just so I did not fall into the same peer pressures or same behaviours. And I ended up moving to Redbank Plains with even now a good mate of mine [name redacted]. I pretty much stayed home until I landed myself a job learning how to fit tyres…and pretty much just went to work and stayed home. Went to work and stayed home plus with the medication if I was taking it, yes.”[41]
[41] Transcript, page 22, lines 12 to 21.
In 2012, the Applicant’s father died. In that same year he moved to Townsville with his work. In 2013, he was convicted of “fraud-dishonestly obtains property from another”.[42] The police court brief in relation to this offence states that on 3 December 2012, the Applicant went to Cash Converters Townsville and pawned an SP Rattle Gun Wrench for $125. In the process he signed a receipt stating that he was the sole owner of the wrench. In January 2013 “the complainant” reported the items stolen and said he believed it was located at Cash Converters Townsville. Police subsequently located the wrench there.[43] A few days later, the police approached the Applicant who declined to be interviewed but:
“…made full admissions to selling the property at Cash Converters Townsville and stated that the property that he sold was not his and he had taken it from his current place of employment where he is a tyre fitter.”[44]
[42] Exhibit G1, G-documents, G2, page 33.
[43] Exhibit R2, Respondent’s Supplementary Material, SG2, page 32.
[44] Ibid.
At the hearing, the Applicant gave a slightly different version, as follows:
What – what happened there, I moved up to Townsville to expand the business with [name of business]. They’re mainly based in Rocklea. While I was up there, there was – we were renting a shed…and there was certain materials either high lift jacks or impact wrench, impact, what do you call it, impact drills that were used to take wheel sockets off. There was one that was discarded and that actually talked to my employer when he did come up to visit whether I could just take it home and have a look at it, pull it apart and just see how it works. I did that and that was – there was nothing wrong with that. During the Christmas break I was living right next door in a caravan park next to the shed that we were at. I had an impact drill missing from my work ute. I reported it to the police as you would that that, ‘Look, this is what’s happened’. Told the police. They fingerprinted the car. I got the police number for it, and gave it to my employers, but before that, that drill that I actually did take home from work that we were meant to chuck out, I ended up putting it through Cash Converters. It was the same brand. Work has called up everywhere up Townsville from other truck yards and second – pawnbrokers, and they pretty much got information that the same brand impact drill was pawned by me. When we further found out and actually figured out when they looked at the serial numbers on them, you know, it – that was an impact drill that was chucked out previously, I was still with work and still had [a management] position, but Cash Converters, as they state it, I put something in that was not mine or was – yes, it’s still me, was still fraud… My employer didn’t want to get involved in it…I did ask them to just write me a letter to explain…but he just didn’t want to come into it, but I still had my job for another couple of years until the business didn’t work out in Townsville.[45]
[45] Transcript, page 23, lines 1 to 34.
The police records are neither inconsistent with nor corroborative of the Applicant’s explanation. As far-fetched as the Applicant’s evidence seems, as it involves a very unlikely coincidence, I am inclined to accept it for two reasons. First, the absence of other criminal activity between late 2009 and late 2014 strongly suggests that the Applicant had stable accommodation and was not using drugs which is consistent with him having employment throughout that period as he claims. Second, it seems unlikely that his employer would have continued to employ him if he had stolen from them. I am satisfied that the drill that the Applicant pawned was one that his employer had allowed him to take home, although I am not satisfied that his employer had transferred ownership to him.
Eventually, the Applicant resumed using methamphetamine. He attributes that to an increased workload due to a co-worker’s poor performance. The business failed in Townsville and he was relocated back to Brisbane, by which time, according to him, he was, “well and truly addicted to meth and was unfit to work”, and he lost his job.[46] He found himself homeless. As a result of being homeless he stopped taking his medication.
[46] Exhibit G1, G-documents, G2, page 91.
The Applicant attempted to get accommodation at a caravan park in the north side of Brisbane. When he was about to move in, he was told by the manager that he could not stay there. He reacted by committing numerous trespasses at that accommodation. He said often he just found an empty caravan to rest his head. The Applicant’s criminal history contains six offences of “trespass-entering or remaining in dwelling or yard” committed between October 2014 and May 2015, and eight such offences that were all committed on 2 May 2015. The Applicant said that the six offences related to his activity with respect to the caravan park and the eight offences on the same day arose from a police chase. He said he was illegally staying in a vacant property that was under construction and when the police came, he absconded, and they chased him through several residential backyards. He was charged in relation to every property he entered. There is a report in the police court brief of one resident who was not home at the time but was “quite shaken” when she was told that the Applicant had been in her property.[47]
[47] Exhibit R2, Respondent’s Supplementary Material, SG2, page 116.
At the beginning of this period, the Applicant committed “burglary and commit indictable offence” between 3 and 6 November 2014. The police court brief indicates that the Applicant broke into a locked residence by cutting the fly screen and pulling it off the window then breaking the window.[48] He then stole some power tools, being a drill and sander. The Applicant told the Tribunal that he had been squatting in a vacant house across the road and noticed a residential property that appeared to be unoccupied, so he broke in and stole some power tools. He said he did not pawn the tools, but he gave them to a friend or swapped them for accommodation or drugs.[49]
[48] Ibid, page 58.
[49] Transcript, page 67, lines 44 to 48.
Between November 2014 and June 2015, the Applicant was sentenced on four separate occasions for various offences including some of the trespass offences mentioned above and offences relating to drug use. For some of these he was sentenced to short periods of imprisonment.[50]
[50] Exhibit G1, G-documents, G2, pages 30 to 33.
In September 2015, the Applicant was sentenced for numerous offences including the balance of the above-mentioned trespassing offences, the “burglary and commit indictable offence” already mentioned, and several more dishonesty offences.[51] Those offences are as follows:
[51] Ibid, page 30.
·with respect to a tent and four clamps:
oon 30 October 2014 the victim, a business, reported the theft of various tools, machinery and computer parts, valued at $5000;
othe items included two pairs of clamps and a tent. (The Applicant was charged with “receiving tainted property”);
oon 3 November 2014 the Applicant pawned the two pairs of clamps at a Cash Converters. (He was charged with “fraud – dishonestly obtains property from another”);
oon 4 November 2014 the Applicant pawned the tent at the same Cash Converters. (He was charged with “fraud – dishonestly obtains property from another”); and
·the Applicant told police that he pawned the items for a friend who could not pawned them himself because he did not have any identification. He refused to identify the friend;[52] in relation to a stolen mobile phone:
[52] Exhibit R2, Respondent’s Supplementary Material, SG2, page 46.
oon 28 October 2014, the victim was at a shopping centre when her mobile phone was taken from her handbag, which was closed so that there was no possibility that her phone could have accidentally fallen out. (The Applicant was charged with “receiving stolen property”); and
oon 31 October 2014 the Applicant pawned that mobile phone at Cash Converters, declaring that he was the owner of the phone. (He was charged with “fraud – dishonestly obtains property from another”);
·on 30 April 2015:
othe Applicant opened the driver’s door of a car that was parked at its owner’s residence. He ransacked the vehicle, leaving items strewn throughout. He took the victim’s wallet containing various bank cards and identification. He also took a work bag that contained items valued at several hundred dollars. (He was charged with “enter premises and commit indictable offence”);
othe following day, he used one of the stolen cards to purchase food to the value of $25.99 in two separate transactions. (He was charged with two counts of “fraud – dishonestly obtains property from another”);
ohe then used one of the stolen cards again to purchase food to the value of $31.99. (He was charged with “fraud – dishonestly obtains property from another”); and
·on 8 May 2015, the Applicant was found in possession of a mobile phone that had been stolen in a burglary of its owner’s home. (The Applicant was charged with ”receiving tainted property” and “unlawful possession of suspected stolen property”).
The Applicant received multiple concurrent periods of imprisonment in relation to those offending episodes. The total effective sentence was eight months imprisonment. When passing sentence on the Applicant, the learned sentencing Magistrate made the following comments:
“The courts impose heavy penalties for counts of receiving, the theory being that if people were not prepared to receive property, then there – people would be less inclined to commit dishonesty offences. And courts must impose penalties that will act as a personal deterrent to you not to commit receiving charges….”[53]
[53] Exhibit G1, G-documents, G2, page 49.
During his incarceration, the Applicant got a job in the laundry and did not have any incidents. He was released and taken to Immigration Detention as his visa had been cancelled due to his offending. His visa cancellation was revoked and upon release from detention, the Applicant stayed with his sister, however there was insufficient space, so he moved out. He found it difficult to get accommodation and ended up “couch surfing” and he eventually stopped his medication. This led to his depression returning which in turn led to him resuming his methamphetamine use.[54]
[54] Ibid, page 92.
However, the Applicant said this time he did not commit crimes to support his drug use. Instead he followed the “Curb side pickup” and found scrap metal that he would sell. The curb side pickup in Brisbane is an opportunity for homeowners to place unwanted items outside their properties for the Brisbane City Council to collect and dispose of appropriately. It is common for members of the community to search through other people’s discarded items and take items they want. The Applicant said he would find copper wires in items like televisions and use a knife to strip the plastic off so that he could then sell the copper.
The Applicant continued to commit various offences between 2016 and 2019.
In December 2017, the Applicant was charged with enter premises and commit indictable offence by break and wilful damage. A vacant property had been broken into and a bench top had been damaged by cigarettes being stabbed out on it leaving burn marks. In the hearing the Applicant denied that he had broken into the property. Rather, he said he met some people on the train and followed them to the property that they were already occupying. He denied having done any damage to the property.[55] The Applicant pleaded guilty, and was convicted of these offences, and in the absence of strong evidence to the contrary, I find that he committed them. Although I accept that it was not him that damaged the benchtop as property damage does not feature in his criminal history despite the many offences arising from the Applicant unlawfully occupying other people’s property.
[55] Transcript page 32 lines 28 to 38.
In July 2018, the Applicant was charged with possession of suspected stolen property and being in possession of a knife in a public place or school. These charges arose from the Applicant being found in possession of a lunchbox that did not appear to be his, a large fishing knife and a smaller knife. According to the Applicant, the knives were solely to remove plastic from copper wire that he got from the curb side collection.[56]
[56] Transcript page 48 lines 31 to 33.
In January 2019, the Applicant was sentenced for the offences outlined in paragraphs 60 and 61 along with numerous other offences.[57] For the offence of enter premises and commit indictable offence by break, he was sentenced to six months imprisonment. For the remaining offences, he was sentenced to an aggregate penalty of 18 months of probation.
[57] Exhibit G1, G-documents, G2, page 29.
After his release from gaol, the Applicant was taken into Immigration Detention. There he participated in various classes with respect to alcohol and drugs. He had no incidents. In February 2019, the Applicant’s sister wrote to the Respondent in support of the Applicant’s revocation request. Her letter included the following:
“I understand that Kondanani has a long history of drug and petty crime offences which have led to the cancellation of his visa. Kondanani has been homeless and he suffers from depression and anxiety. Whilst this does not excuse his conduct, it goes some way to explaining the nature of his offences
Kondanani is now receiving treatment for his mental health conditions and he has finally put plans in place to turn his life around. If Kondanani is removed from Australia, he will be sent to live in poverty in a third world country. We have no immediate family in Zambia. Our father died in 2011 and all of our grandparents are deceased. Our extended family do not have the resources to support Kondanani, and there is no social welfare or free access to health care. I hold grave concerns for Kondanani’s personal safety and well-being should he returned to Zambia in these circumstances. I also fear that I may lose all contact with him as he will not have the resources to hold a fixed address or access telecommunication.
If Kondanani’s visa is reinstated, he will have family support and health resources to assist him to rehabilitate. Kondanani understands the gravity of this situation and he is committed to ensuring that he does not re-offend.”[58]
[58] Ibid, page 110.

In June 2019, the visa cancellation was revoked. From August 2019 to October 2019, the Applicant committed further offences including unlawful possession of stolen property (a concession Go Card that he told police he found at a train station),[59] and possession of a knife in a public place (which he told police belonged to a friend).[60] On 15 October 2019, the Applicant was sentenced to a total effective penalty of 14 days imprisonment for those offences. In addition, for breaching the probation order that was imposed in January 2019 he was sentenced to a total of five months imprisonment.[61] In passing sentence, the learned sentencing Magistrate said:
“In relation to your breach of the community-based order, I take into account the report that has been furnished and that it details your non-compliance with the order. You have been given ample chances by Courts over an extended period dating right back to 2006 in the Magistrates Court at Richlands, when you were dealt with in relation to breaches of probation that was made in… the Brisbane Magistrates Court on 22^nd of March 2005.
But you still keep offending. You still keep breaching the orders that are made in your favour. Numerous Courts over the years have granted you suspended sentences of imprisonment. You have breached those. The court said, ‘Oh, no. We will give Mr Zyambo another [chance].’ So they enlarged the period – the operational period of the suspended imprisonment. But you continue to offend. If you want to stay in this country, you are not going the right way about it. You need to have a re-look at yourself in the mirror and see what you are doing wrongly.”[62]
[59] Exhibit R2, Respondent’s Supplementary Material, SG2, page 235.
[60] Ibid.
[61] Exhibit G1, G-documents, G2, page 28
[62] Ibid, page 37.
On 29 October 2019, the Applicant’s visa was again cancelled and that cancellation was not revoked.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
1.The nature and seriousness of the non-citizen’s conduct to date; and
2.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant has not committed any violent offences. He has been found in possession of knives on three occasions, however I accept that in relation to one occasion, his purpose was to strip plastic off copper wire. There is no evidence tending to suggest that he had the knives in his possession with the intention of using them to threaten or harm anyone.
The Applicant has not committed offences against vulnerable members of the community or government officials in the course of their duty.
The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court. The Applicant was given the benefit of non-custodial penalties on six occasions before he was sentenced to 12 months imprisonment (to be suspended after serving six months) in October 2006. That is a substantial head sentence and a substantial period of time to serve. The learned sentencing Magistrate made it clear that he considered imprisonment to be the only appropriate penalty given the extent of the Applicant’s criminal activity. The penalty imposed reflects serious offending. In 2008, the Applicant was sentenced to various periods of imprisonment ranging from 14 days to six months for offences that were committed during a suspended sentence. Again, a sentence of six months to serve in custody reflects serious offending.
The Applicant was subsequently sentenced to a period of three months’ imprisonment (after failing to complete a diversion order from the Drug Court) and to some short periods of imprisonment in early and mid-2015. In September 2015, he was sentenced to periods of imprisonment of one month, two months, six months and eight months, to serve nearly three months of that before release on parole.
In May and July 2008, the Applicant was sentenced to some very short periods of imprisonment in relation to failure to appear in accordance with a bail undertaking and the breach of a suspended sentence.
In January 2019, the Applicant was sentenced to 6 months imprisonment (having already served 74 days in custody). This is a substantial sentence, and I note that the Applicant had already served over half of the sentence in pre-sentence custody and that upon release he was subject to parole conditions. These matters are indicative of serious offending. Again, in October 2019 the Applicant was sentenced to a total effective sentence of five months imprisonment (having served 13 days in pre-sentence custody), to serve around five weeks of that sentence before being released on parole. In that sentencing episode the Magistrate noted the Applicant’s lengthy criminal history and the fact that he continued to breach court orders and suspended sentences.
The Applicant has been sentenced to numerous periods of imprisonment, including some that were substantial. This is indicative of persistent and serious offending.
The Applicant has committed at least 89 offences (not including the offences that arise from breaching previous sentences). Many of these involve possession of drugs or drug related paraphernalia, and the only identifiable victim of this type of offending is the Applicant himself. However, there are also numerous offences that involve the Applicant illegally entering or remaining in property belonging to other people, stealing or receiving stolen items, and committing fraud. Noting his criminal history, there is not an overall trend of escalating seriousness in the Applicant’s offending. Rather, there are periods of more serious offending followed by less serious offending or in relation to the period between late 2009 to late 2014 – almost no offending. What is readily apparent is that over an extended period of time the Applicant used drugs which led to drug-related crime, and even after periods of abstinence, he always returned to drugs and crime.
The cumulative effect of the property and fraud related crimes committed by the Applicant includes invasion of the sanctity of people’s homes, vehicles and businesses – which in one case left the resident of a property “quite shaken”, damage to property, loss of property, and financial loss. While the Applicant describes his offending as “petty crime”,[63] it is not insignificant: it affects people’s lives. I would add that the cumulative effect of the receiving stolen property offences is, as one learned sentencing Magistrate pointed out, that it encourages the theft of property. The cumulative effect of the Applicant’s repeated failure to attend court or a police station in accordance with bail undertakings and/or directions issued by police, and his attempts to evade the police, is that the processes of justice have been frustrated and a great deal of police and court resources have been expended on him. While I recognise that a lot of the Applicant’s property crime involved him using vacant properties when he was homeless, he did break into a business and two cars for the purpose of stealing. His offences, while not at the more serious end of the spectrum of serious offending, involve disregard of the rights and interests of other people with respect to their property. Further, the Applicant shows little respect for the administration of criminal justice. His offending – because of its frequency, persistence and impact on others – is serious.
[63] Transcript, page 32, line 43 to page 33, line 7.
The Applicant’s visa has been cancelled because of his offending on two previous occasions. When each of those cancellations were revoked, the Applicant was warned in writing that further offending could result in his visa being cancelled again. The Applicant received and understood those warnings. The fact that following each warning he continued to offend weighs very heavily against him.
I do not consider factors (g) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances, so they do not require consideration.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The invasion of a person’s home, car or business premises can leave the victim feeling violated and insecure. Further, one of the mobile phones that the Applicant was convicted of receiving had been stolen from the victim’s handbag while she was shopping. Members of the community should be able to go about their lives without the worry that their possessions will be stolen. The nature of harm to the community should the Applicant continue to commit property crime therefore includes the sense of violation felt by victims, loss of items of personal and commercial value, and financial loss.
The nature of harm should the Applicant continue to commit offences arising from the possession of drugs and drug related paraphernalia is really only harm to himself. There is no evidence that the Applicant behaves in a way that is harmful to others under the influence of illicit drugs. Should the Applicant supply drugs to others, there is potential for harm to those people should they become addicted like the Applicant did or commit drug related crime.
The nature of harm should the Applicant continue to disregard bail obligations and police directions is that police and court resources are wasted adjourning matters and locating the Applicant.
Overall, the nature of harm to the community is moderately serious.
The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
The Applicant claims that if he is returned to the wider community he will abstain from drugs and he will not re-offend. He told the Tribunal that he recognises that it is a privilege and not a right to live in Australia, and that he should act accordingly. He said:
“…if I don’t grow up and actually realise what has to be done to actually live a responsible life than I never will and I don’t deserve the opportunity to stay in Australia. I fully understand that now and I will do whatever it takes for me to do, if given the chance to prove that.”[64]
[64] Transcript, page 74, lines 3 to 6.
The Applicant expressed remorse and a commitment to rehabilitation many times throughout the hearing. I accept that the Applicant genuinely wishes to abstain from drugs, have stable accommodation and employment, avoid other drug users, and live a crime-free life. However, he has tried to do that on previous occasions and been unsuccessful. His evidence was that he did not use illicit drugs during periods of incarceration. However, prison appears to be a protective environment for the Applicant. He said:
“…most of the times I’ve actually been in front of a Magistrate I’m in dire help. It’s not a good look but the prison systems and facilities are designed for people to at least not go too far off the track, they still have that chance to have the rest, have the discipline to reshape their lives especially being drug free…every time I’ve actually been incarcerated I’ve actually found I can achieve things without using drugs, I can achieve things without actually relying or looking towards the wrong people for advice just by training, sleeping, working. I usually get work in the laundry, it gets your day done, you’re eating well, you’re eating right.”[65]
[65] Transcript, page 52, lines 17 to 29.
The Applicant said he did not use cannabis daily when he was in Zambia and found other things to occupy his time. He had a period of good behaviour between 2009 and late 2014 when he was staying with a friend who was a positive influence, his depression had been diagnosed and he had employment. However, he ended up relapsing and losing that employment. I note he has completed some rehabilitation courses in prison. Unfortunately, every time the Applicant has managed to abstain from drug use, he has ultimately relapsed and returned to drug related crime. Factors that tend to recur in the Applicant life, that seem to precipitate or perpetuate his drug taking, are homelessness, unemployment, pro-criminal associates and failure to consistently take his medication.
The Applicant has not been able to navigate these issues, and his addiction, by himself on a long-term basis. He has very little pro-social support in the wider community. There are letters of support before me from the Applicant’s sister, his cousin, and four friends. They speak to his good character. Based on all of the evidence before me, I have no doubt that the Applicant does have a good character when he is not dependent on drugs. I have great sympathy for him, having been neglected by his father in Zambia and abandoned by his mother upon his return from Zambia, all the while dealing with undiagnosed depression and anxiety conditions and struggling with a vulnerability to drug dependence.
The letter from the Applicant’s sister was written in response to the previous cancellation of the Applicant’s visa. She said in that letter that if the Applicant’s visa was reinstated he would have family support. [66] Whatever family support may have been provided after the Applicant was released from Immigration Detention was evidently insufficient as the Applicant returned to drugs.
[66] Exhibit G1, G-documents, G2 page 110.
If the Applicant is returned to the wider community this time, he intends to move to Western Australia. In his Statement of Facts, Issues and Contentions (“SFIC”) he intended to start a new life in Perth with his adopted sister, with whom he has a very strong relationship, and who would provide safe accommodation and ongoing support.[67] There is no evidence before me from the Applicant’s adopted sister or anyone else in the Applicant’s family to confirm this. In the hearing the Applicant was asked about his relationship with his adopted sister, and he said that they communicate by phone and the Messenger App. He also mentioned that she has recently had a baby. In the hearing when he talked about moving to Perth, he said that part of the reason was to get away from bad influences, and also that he would be near his adopted sister and his cousin and her family. He said they do not have a criminal lifestyle. The Applicant’s cousin provided a letter of support which said that if the Applicant were to be returned to the community he would have “family support”[68] to assist him to rehabilitate. However, she did not specify what kind of support she thought he would have or what support she was willing to provide.[69] One of the Applicant’s friends said that she would be available if he needed advice in the future.[70]
[67] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 8.
[68] Exhibit A3, Letter of Support of Ms Katwishi-ng’andwe.
[69] Ibid.
[70] Exhibit A4, Letter of Support – Mr Mwampole.
Without evidence from the Applicant’s adopted sister, it does not appear certain that the Applicant has an offer of accommodation from her in the event that he is returned to the wider community. Nor does he have an offer of employment. He has contacted a rehabilitation service that advised that he can be assessed if he is released from detention. If the Applicant relocates to Perth, he will have some kind of support from his adopted sister and his cousin although what level of support they can provide is not known. The Applicant’s ability to remain drug free if he is returned to the wider community has not been recently tested, however, previously he has abstained from drug use while incarcerated and then returned to drug use after his release. At this stage the Applicant’s drug dependency remains unresolved, and he will have little in the way of protective factors if he is returned to the wider community.
Taking all these matters into account, I assess that there is a high risk that the Applicant will resume drug use and commit further property offences against individuals and businesses (and other offences) if he is returned to the wider community.
Conclusion: Primary Consideration A

There is a spectrum of seriousness of offending, and paragraphs (a) to (i) assist decision-makers to determine where on that spectrum an Applicant’s offending falls. The Applicant’s offending is not towards the higher end, although it is still serious. The Applicant’s offending is persistent and there is a high risk that he will continue to offend. Primary Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child.
The Applicant does not claim to have any biological children or step-children. He has nominated his nephew, Child A, as a minor child in whose best interest it is to revoke the Decision under Review. Child A is 12 years old. In his revocation request the Applicant said, of his relationship with this child:
“[Child A] is my nephew, I love him dearly and (sic) deserves more than what I can offer him at the moment. Due to my battle with homelessness and drug addiction, I have not been spendin (sic) much time with my nephew and young sister (his mother). Because I believe he doesn’t need to see me all in a mess hanging out or under the influence of illicit substances. It is a shame but I know he is an excellent student, plays cricket and is a good upcoming musician (plays the drums). Next year he will be in grade 7 junior high. I hope I can fix my issues and get more involved in his life. I am the only male from the Zyambo family in Australia my father his grandfather is deceased.”[71]
[71] Exhibit G1, G-documents, G2, page 81.
In relation to the impact on Child A if the Decision under Review is not revoked, the Applicant said: “If I were to return to Zambia it would be a shame I imagine my nephew would miss me as I would miss him.”[72]
[72] Ibid, page 81.
There is no evidence that the Applicant has ever played a parental role, or is likely to ever play a parental role, as Child A already has his mother and father fulfilling that role.
I accept the Applicant’s evidence that he has had very little to do with Child A largely because he did not want to expose Child A to his drug addiction. In this way the Applicant has avoided causing any negative impact on Child A.
In January 2019, Child A wrote a letter of support which included the following passages:
“I am writing this letter of support because I do not want my uncle to be deported.
I know my uncle has made mistakes that have led him to jail but he is not a bad person. He has been homeless and desperate for shelter and food. He wants to improve and I believe he can.
If he is deported, he can never return to Australia and I may never see him again. I will miss him very much.
If he is allowed to stay in Australia I believe he will change for the better. He wants to study and get a job. I will encourage him to succeed.
I love my uncle and I believe in him. Please give him another chance to stay in Australia.”[73]
[73] Exhibit G1, G-documents, G2, page 109.
I accept that Child A wants the Applicant to remain in Australia and will miss him if he is deported. As Child A is 12 years old, there are six years in which the Applicant can make a positive contribution in his life while he remains a minor. That would, of course, depend on the Applicant resolving his problems with drug use and, at this stage, he does not appear to have good prospects of that.
Conclusion: Primary Consideration B
I am satisfied that it would be in the best interests of Child A for the Applicant to remain in Australia. However, given his limited involvement in Child A’s life to date and the uncertainty about whether the Applicant can resolve his drug problems so that he can be a positive influence in Child A’s life, I find this consideration carries only limited weight in favour of revocation. Primary Consideration B weighs slightly in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[74]
[74] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was nine years old. He is now 35 years old. He has spent nearly three quarters of his life in Australia;
·he had some difficulty in his childhood, he lacked the support of his parents at an important time in his life, he has struggled with drug addiction since his teenage years, and he suffers from depression and anxiety;
·he committed his first offence seven years after moving to Australia;
·he has committed over 80 offences including several property offences;
·his offending is moderately serious in nature;
·his offending is almost entirely drug-related, and when he is in the grip of a drug dependency, intervention by the police and the courts has largely failed to deter him from re-offending;
·his offending indicates a lack of respect for the rights and interests of members of the community in relation to their property, and a lack of respect for the administration of justice;
·on two previous occasions the Applicant’s visa was cancelled, and then reinstated with a warning each time that further offending could result in the cancellation of his visa. Despite receiving those warnings, the Applicant continued to offend:
·there is a high risk that if he is returned to the wider Australian community he will re-offend;
·he was employed for around four years as a tyre fitter, and he has had several other short periods of employment. He has found it difficult to obtain and keep employment due to homelessness and his drug use.[75] In 2001 he volunteered for the Red Shield appeal. I consider that he has made a modest positive contribution to the Australian Community; and
·the Applicant has some immediate family members who will be adversely impacted if he is returned to Zambia (discussed in more detail under Other Consideration (b) below).
[75] Transcript, page 74, line 12 to page 76, line 2.
Conclusion: Primary Consideration C
The Applicant has certainly breached the trust of the Australian community, and he has continued to offend despite two previous warnings that further offending could result in his visa being cancelled. Taking all of the above matters into account, Primary Consideration C weighs heavily in favour of non-revocation of the Decision under Review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not claim to fear persecution within the meaning of s 5J of the Act, or to fear significant harm within the meaning of s 36(2A) of the Act, if returned to Zambia, and no such risks are apparent from the evidence. The Applicant’s SFIC states “The Applicant contends with the real risk factors in being homeless being a real life threat and are equivalent to a person who faces persecution in his/her country upon returning”.[76] In the context of all of the other claims and evidence I do not take this contention to mean that the Applicant fears persecution in Zambia. Rather, it is relevant to the extent of impediments to successful resettlement that the Applicant would face in Zambia. This consideration is not relevant to the determination of this application.
[76] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 10.
(b) Strength, nature and duration of ties
The Applicant moved to Australia in March 1995 at the age of nine. He commenced offending in October 2002 when he was 17 years old. He is now 35 years old. On account of his youth when he relocated, the time he has been here, and the fact that he did not commence offending soon after arriving in Australia, he is entitled to some measure of weight in his favour under paragraph 14.2(1)(a) of the Direction.
The Applicant worked as a tyre fitter from 2010 to 2014, and he had several other short periods of employment. He did some voluntary work doorknocking for the Red Shield Appeal in 2001. These matters add a slight measure of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant has a sister and nephew in Australia who are Australian citizens. I accept that he has a positive and loving relationship with each of them. The Applicant has an adopted sister with whom he claims to have a close relationship although she did not provide a letter of support. He also claims to have an adoptive brother, who did not provide a letter of support either. He said his adopted sister has just had a baby although he did not claim to have any kind of relationship with that child. I accept that the Applicant has a positive relationship with his adopted sister although, on the evidence, it does not appear to be close or particularly supportive. I am not satisfied that he has much of a relationship with his adopted brother. The Applicant’s mother is not currently in Australia although she has Australian citizenship and therefore a right to reside here on a permanent basis. I accept that the Applicant has a strong relationship with her. Based on the letters of support and the Applicant’s evidence, I am satisfied that he has a cousin and handful of friends who are not involved in drug taking or criminal culture. One friend in particular has known the Applicant since he arrived in Australia and I accept that they have a very close and supportive friendship. The Applicant gave evidence that he had limited contact with this friend for some years while he was dependent on drugs because he did not want his drug dependency to adversely impact on his friend. I am satisfied that the Applicant has some strong familial and social ties to the Australian community.
I am satisfied that the Applicant’s sister, nephew, mother and adopted sister would be adversely impacted by his removal from Australia as they would miss him and they would worry about his well-being in Zambia. His sister said she could lose all contact with the Applicant as he would not have the resources to hold a fixed address or access telecommunication, and I accept that there is a chance of that. I am prepared to accept that the Applicant’s adopted brother could be adversely impacted if the Applicant were to be deported because he would not be able to develop a relationship with him. There is no evidence that the Applicant’s adopted sister’s child or any in-laws would be adversely affected by the Applicant’s removal from Australia and I make no such finding.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d) is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his revocation request, the Applicant gave the following reasons for his request that are relevant to this other consideration:
·I NO LONGER HAVE TIES TO ZAMBIA.
·I HAVE RESIDED IN AUSTRALIA FOR MORE THAN 2/3 OF MY LIFE. (1995 TO DATE).
·CONCERNS ABOUT STANDARD OF LIVING IN ZAMBIA.
·POOR HEALTH FACILITIES AND TREATMENT IN ZAMBIA.
·LACK OF SUPPORT IF I WERE TO RETURN TO ZAMBIA.
·IMPACT ON MY MENTAL HEALTH AND WELL-BEING, (DEPRESSION AND ANXIETY)
·LACK OF EMPLOYMENT AND/OR ACCOMMODATION IN ZAMBIA.
·I NO LONGER SPEAK ANY OF THE DIALECTS.[77]
[77] Exhibit G1, G-documents, G2, page 71.
In another part of the form he pointed to cultural differences, standard of living, health risks, in particular malaria and HIV, language, employment, accommodation and medical treatment for depression as things that he fears and problems he would face if returned to Zambia.[78] In his SFIC he repeated most of these claims and, in addition, he said he would not be able to reach basic living standards and that he would be seen as bringing COVID-19 into Zambia. The Applicant told the Tribunal that there is no welfare system in Zambia and that employment prospects are very poor – he said there are university educated people in Zambia competing for a job as a service attendant at McDonalds.[79] He did not think his relatives in Zambia could help him.
Language and Culture
[78] Ibid, page 86.
[79] Transcript, pages 64, lines 24 to 25.
When it was put to the Applicant that English is the national language of Zambia, he said “The registered national language, yes. But with the level in education it’s not the majority spoken.”[80] He said most educated people speak English, but ceremonies and music are usually in traditional language. In Zambia, the Applicant spoke English at school. He also spoke Bemba which was the language of his mother’s tribal town.[81] He said:
“Like, if you went to the shops where you actually get a modern style cashiers and that, all that sort of thing, most of the companies were either from out of the country, either European or South African, so that was usually with English, but most of the time if you’re just going to go and buy a couple of tomatoes you’d go to a lady sitting there that pitched a stand somewhere close by to where she lives. In certain cases we’ve – they’ve tried in the local language asking how you are. If you can’t really answer that shortly or to their standards, the price either goes up or they try to short-change you.”[82]
[80] Transcript, page 64, lines 4 to 5.
[81] Transcript, page 27, lines 13 to 15.
[82] Transcript, page 28, lines 26 to 35.
The Applicant said he is still able to understand some Bemba although he has difficulty speaking it.
I am satisfied that the Applicant could get by in Zambia using English to communicate. He may encounter some problems, like the example he gave, because he is not proficient in local languages. However, I am satisfied that if he is around Bemba speaking people he could develop his proficiency in that language to a reasonable level given he used to speak it until the age of nine and still understands some of it.
The Applicant was raised in Zambia until the age of nine, he visited Zambia briefly over a Christmas period in 1999/2000, and he spent around 14 months living on his grandfather’s farm in Zambia between January 2003 and March 2004 (between the ages of 17 and 18). While he has not lived in or visited Zambia for some 16 years, I am satisfied that given the time he has spent in Zambia he has reasonably good knowledge of the culture and customs at least in the area where he is from. He has not claimed to be under any restriction concerning where he could live in Zambia.
When the Applicant was asked if he agreed that his concerns he had about returning to Zambia would be concerns that are faced by all Zambian citizens, he said:
“To some extent but they’ve grown up with that. It’s while they’re under the shelter of their parents and their elders they can see what the dangers are, they know where you can’t go or what you can’t do. If tourists go to that country even tour guides tell them you don’t do this or you don’t do that or they generally stick to the routes that tourists stick to in numbers. I’m going there and looking to find a place to stay, a place where I belong, and actually find my fit in circles. And while I’m trying to find that there will be people that will exploit the fact that I’ve come from a place that is generally safer day to day. Depending on what money or what money you got you could get charged or arrested for a very, very minor offence and you find yourself walking out with lice, HIV and pretty much no time to get out, you can’t bribe the police officials or you just got inadequate representation. It’s things like that. Just trying to get accommodation, how do I treat my next door neighbour’s family, kids? How do I treat someone that comes into my yard to steal from me? Like in Australia you call the police, you – there’s right channels that you do that you can actually feel safe to do so. I’m going to a place where someone could be robbing you and they’ve already paid the police to do so. And I fear that my actions will either be too much or not enough to be adequate to keep myself safe mentally, physically.”[83]
[83] Transcript, page 64, lines 26 to 46.

I am satisfied that, if the Applicant were to be removed to Zambia, he would have less local knowledge than Zambians who have lived there for many years, however this is something he could rapidly acquire simply by communicating with locals. The Applicant has an aunt living in Zambia (his mother’s only living sister), who is in her 80’s and well educated. He said his mother is in contact with her. When asked if his aunt could provide any support to him in Zambia he said he did not think so because he is not her child and she is elderly. I find that speculative. It is apparent that this possibility has not been explored. It certainly would seem possible for the Applicant to speak with this relative about Zambian society.
I am satisfied that there are not any significant language or cultural barriers to the Applicant’s successful resettlement in Zambia.
Standard of living, poor services
There is no country information on Zambia before me. The Applicant and his sister said that Zambia is a third world country and there is no welfare system. I am inclined to accept that there is either no, or limited, government welfare in Zambia, and that there is a much lower standard of living in Zambia than in Australia. The Applicant gave evidence that his mother was a vet in Zambia and that he attended a private school. I am satisfied that it is possible to be financially comfortable in Zambia, although that does not necessarily mean that the Applicant would be able to achieve that. I accept that he may have difficulty finding employment that provides for his needs including accommodation.
The Applicant fears that he will become homeless in Zambia and that this will expose him to harm. He said Zambia is generally an unsafe place. The Applicant also gave evidence that being homeless in Australia exposed him to the risk of harm, saying that one of the benefits of using methamphetamine was that he could stay awake at night time which is the time when homeless people are most vulnerable to being attacked. I accept that Zambia is in general a more dangerous country than Australia, and that homeless people are vulnerable to being attacked. As I have already stated, the Applicant has an elderly aunt in Zambia with whom his mother is still in contact. He said he did not know her circumstances except that she is well educated. The reasons he gave for asserting that she could not help him were unconvincing. I am satisfied that the Applicant’s aunt could potentially assist him with temporary accommodation.
The Applicant is 35 years old and in good physical health. He has previously worked as a tyre fitter and had other short periods of employment doing manual labour, e.g. in an abattoir and stacking roof tiles.[84] I am satisfied that the Applicant has some employment prospects in Zambia.
[84] Transcript, pages 74 and 75.
The Applicant pointed to health risks in Zambia including malaria and HIV and his sister said Zambia does not provide free health care. There is no country information before me about health risks in Zambia although I accept that the risks are probably greater than in Australia. The means by which HIV is transmitted are well known in Australian society and I am satisfied that the Applicant is equipped with that knowledge and therefore able to protect himself. There is no country information before me about accessibility and standard of health care available in Zambia, or the availability of medication such as the medication the Applicant takes in relation to his anxiety and depression, although I am prepared to accept that the level of care and treatment available would be worse in Zambia. The Applicant does not claim to suffer from any medical conditions. I accept that in Zambia, the risks of disease are higher than in Australia and the level of medical and psychological care is lower. I accept that a lower level of mental health treatment is likely to impact on the Applicant given his depression and anxiety. I note that he told the Tribunal that he lowered his dose or sometimes skipped a dose when he was employed because sometimes he was on-call and he might have to drive and also he felt a natural high from having money and being tired from work. I am satisfied that the Applicant can cope without his medication in some circumstances.
I have found that if the Applicant were to be returned to the Australian community, there is a high risk that he would re-offend. This is largely based on a high risk that he will resume drug use. There is no evidence before me about the availability of methamphetamine in Zambia. The Applicant’s tendency to use drugs is influenced by his environment and the factors that lead him to drug use in Australia may not be present in Zambia. The Applicant gave evidence that he found it easier to abstain from drugs when incarcerated; he used cannabis a lot less when he lived on his grandfather’s farm in Zambia and kept himself busy with physical activity (although he had not yet tried methamphetamine at that point in his life); and he refrained from drugs for a four-year period when he was away from criminal associates, taking medication (some of the time), and had secure employment. The Applicant does not necessarily have a high risk of returning to drug use in Zambia as he will be in a different environment there. However, not knowing exactly what environment he will be in if removed to Zambia, any risk assessment would be speculative. Realistically, there is some risk that he will use methamphetamine there if methamphetamine is readily available to him and he finds himself in difficult circumstances. Based on the Applicants cannabis use the last time he was in Zambia, I am not satisfied that he will have any problems in that regard, and he does not claim that he will. I allocate a measure of weight in the Applicant’s favour on the basis that there is a risk that, partly because of the difficulties he would face in Zambia, he would use illicit drugs there to his detriment.
There is no information before me to support the Applicant’s claim that he would be seen as bringing COVID-19 into Zambia and I reject it.
The Applicant will not enjoy the standard of living and access to services that he has available to him in Australia. However, I am obligated to consider his ability to establish himself and maintain basic living standards in the context of what is generally available to other citizens of Zambia. I have very little reliable information about that. The Applicant will not have an existing familial or social network to assist him to re-establish himself, except for the possible help of his aunt. I accept that he may find it hard to secure his own accommodation and employment. I accept that he will not have access to the same level of care for his mental health conditions and vulnerability to drug dependence as he would in Australia. However, the Applicant did not give evidence of any of his family or relatives ever failing to maintain basic living standards in Zambia and I do not have any country information before me that would tend to indicate that the Applicant could not meet basic living standards there. I am not satisfied that the Applicant would be unable to successfully re-settle in Zambia or that he could not maintain basic living standards although I accept that the re-settlement process will be difficult.
Given the difficulties and disadvantages that I have identified, I am of the view that this Other Consideration (e) weighs heavily in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs heavily in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

............................[SGD]...........................................
Associate
Dated: 27 July 2020

Date of hearing:

8 July 2020

Applicant:

By video-link

Solicitors for the Respondent:

Ms Rachael Law, Clayton Utz

“Attachment A – Exhibit List”

Exhibit

Description of Evidence

Party

Date of Document

Date Received by Tribunal

G1

Section 501 G-Documents

R

-

26 MAY 20

R1

Respondent’s Amended Statement of Facts, Issues and Contentions

R

7 JUL 20

7 JUL 20

R2

Respondent’s Supplementary Material

R

-

2 JUL 20

A1

Applicant’s Statement of Facts, Issues and Contentions

A

18 JUN 20

18 JUN 20

A2

Letter of Support of Mr Katwishi

A

9 JUN 20

18 JUN 20

A3

Letter of Support of Ms Katwishi-ng’andwe

A

19 MAY 20

18 JUN 20

A4

Letter of Support of Mr Mwampole

A

25 MAY 20

18 JUN 20

A5

Letter of Support of Ms Jochheim

A

17 JUN 20

18 JUN 20

A6

Letter of Support of Ms Bensley

A

17 JUN 20

18 JUN 20

A7

Applicant’s Reply

A

2 JUL 20

3 JUL 20

Exhibit	Description of Evidence	Party	Date of Document	Date Received by Tribunal
G1	Section 501 G-Documents	R	-	26 MAY 20
R1	Respondent’s Amended Statement of Facts, Issues and Contentions	R	7 JUL 20	7 JUL 20
R2	Respondent’s Supplementary Material	R	-	2 JUL 20
A1	Applicant’s Statement of Facts, Issues and Contentions	A	18 JUN 20	18 JUN 20
A2	Letter of Support of Mr Katwishi	A	9 JUN 20	18 JUN 20
A3	Letter of Support of Ms Katwishi-ng’andwe	A	19 MAY 20	18 JUN 20
A4	Letter of Support of Mr Mwampole	A	25 MAY 20	18 JUN 20
A5	Letter of Support of Ms Jochheim	A	17 JUN 20	18 JUN 20
A6	Letter of Support of Ms Bensley	A	17 JUN 20	18 JUN 20
A7	Applicant’s Reply	A	2 JUL 20	3 JUL 20

“(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”

[2020] AATA 2473

27 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	8 July 2020
Applicant:	By video-link
Solicitors for the Respondent:	Ms Rachael Law, Clayton Utz