NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143 (5 May 2021)

Last Updated: 5 May 2021

NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143 (5 May 2021)

Division: GENERAL DIVISION

File Number(s): 2021/0749

Re: NTTH

APPLICANT

And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal: Senior Member D. J. Morris

Date: 5 May 2021

Place: Melbourne

The Tribunal sets aside the decision of the delegate of the Respondent dated 5 February 2021. In its place, under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Class BS Subclass 801 partner visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.

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Senior Member D. J. Morris

Catchwords

MIGRATION – applicant is a citizen of the Republic of Albania – applicant held Class BS Subclass 801 Partner visa – visa cancelled under s 501(3A) of Migration Act – applicant invited to make representations as to whether mandatory cancellation of visa should be revoked – representations made – delegate decided not to revoke mandatory cancellation of visa – delegate applied Ministerial Direction No. 79 – new Ministerial Direction now in place – no accrued rights – Ministerial Direction No. 90 applied – primary considerations – protection of the Australian community from criminal or other serious conduct – whether the conduct constituted family violence – the best interests of minor children in Australia – expectations of the Australian community – other considerations – international non-refoulement obligations – extent of impediments if removed – impact on victims – links to the Australian community including strength, nature and duration of ties to Australia and impact on Australian business interests – additional claim relating to diligence of legal representation during submissions on sentencing not relevant to Tribunal’s task - weighing of considerations in Ministerial Direction cumulatively in this particular case – decision under review set aside and new decision substituted

Legislation

Acts Interpretation Act 1901, s 7

Administrative Appeals Tribunal Act 1975, s 35

Migration Act 1958, ss 48A, 499, 500, 501, 501CA

Cases

DFTD v Minister for Home Affairs [2020] FCA 859

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337

Harrison and Minister for Immigration and Citizenship, Re [2009] AATA 47; (2009) 106 ALD 666

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48

Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501

Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441

Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197

R v Peirce [1996] VicRp 64; [1996] 2 VR 215

Secondary Materials

Albania Country Focus; European Asylum Support Office (November 2016)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (as later amended)

Migration Act 1958 – Direction under section 499 – Direction No. 75 – Refusal of protection visas relying on section 36(1C) and section 36(2C)(b) (Direction made 6 September 2017, commenced 7 September 2017)

Migration Act 1958 – Direction under section 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction made 8 March 2021, commenced 15 April 2021)

Royal Commission into the Management of Police Informants, Volume 1 - Final Report and Recommendations; Victorian Government Printer (November 2020)

The Kanun in present day Albania, Kosovo, and Montenegro; International Centre for Minority Studies and Intercultural Relations (2004)

REASONS FOR DECISION

Senior Member D. J. Morris


5 May 2021

BACKGROUND

1. On 26 April 2021 the Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (‘AAT Act’) prohibiting the publication of the name of the Applicant in these proceedings or any information that would tend to identify him. He will be known by the anonym ‘NTTH’. Other persons who gave evidence will similarly be anonymised except for those who appeared in their professional capacities as expert witnesses.

What decision is before the Tribunal?

2. NTTH (‘the Applicant’) has brought to the Tribunal a decision by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Respondent’) to refuse to revoke the mandatory cancellation of his Class BS Subclass 801 Partner visa (‘the visa’). The visa was cancelled on 24 February 2020.

Why was the visa cancelled?

3. Section 501(3A) of the Migration Act 1958 (‘the Act’) provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test set out in the Act because of, in this case, the person having a ‘substantial criminal record’. Whether a person has a ‘substantial criminal record’ is set out in section 501(7) of the Act. In NTTH’s case, the relevant provision is section 501(7)(c), that a person has been sentenced to a term of imprisonment of 12 months or more. In addition, the Minister must be satisfied that at the date the visa is cancelled, 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. Whether a visa-holder fails the character test is a matter of law (see Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, at [63]).
4. The delegate had information that on 15 December 2008 NTTH was sentenced in the County Court of Victoria to three years six months imprisonment for offences, and, further, on 22 August 2019 the Applicant was convicted of other offences and sentenced to a period of nine months’ imprisonment. The delegate therefore decided that NTTH failed the character test.

If a visa is mandatorily cancelled, what is the next step?

5. If the Minister (or his delegate) makes a decision to cancel a person’s visa under section 501(3A) of the Act because the person is serving a sentence of imprisonment, as soon as practicable after making the decision, the Minister must give the person written notice of the decision and ‘relevant information’. The term ‘relevant information’ is explained in section 501CA(2) of the Act to be information that the Minister considers would be the reason, or part of the reason, for making the decision to cancel the visa and must be information about the person him or herself, not generally about a class of persons.
6. After written notice of the decision is given to the person, the Minister must invite the person to make representations to the Minister within a prescribed period, about revocation of the decision to cancel the visa.
7. The Minister may revoke the decision to cancel the visa if:

(a) the person has made representations as invited to; and

(b) the Minister is satisfied either that the person passes the character test, as defined in section 501 of the Act, or, under section 501CA(b)(ii) of the Act, that the Minister is satisfied that there is ‘another reason’ why the visa cancellation decision should be revoked.

8. If the visa cancellation decision is revoked, the decision to cancel the visa is taken not to have been made (see section 501CA(5) of the Act) – the person’s visa is restored to them.
9. NTTH made representations to the delegate in accordance with the invitation extended to him under section 501CA(3)(b) of the Act. The delegate considered the representations and decided on 5 February 2021 not to revoke the mandatory cancellation of the visa. The Applicant was notified of that decision by letter emailed to him dated 10 February 2021.

What is the matter for the Tribunal to decide?

10. The Act provides, at section 500(1)(ba) that a person may ask the Tribunal to review a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. NTTH lodged an application with the Tribunal for review of that decision.
11. There are two important points to keep in mind. The Tribunal is not reviewing the decision of the delegate. The Tribunal is making a fresh decision based on the law and the information before it. The Applicant and the Respondent are entitled to make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate. The Tribunal is required to make an evaluation of the factors for and against revocation. Justice North, who was Acting Chief Justice of the Federal Court of Australia at the time, said in Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, at [38]:

The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.

12. The Tribunal therefore must decide two things. First, does the Applicant fail the character test in the Act? If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that NTTH does fail the character test, the second step is for the Tribunal to consider whether there is ‘another reason’ the cancellation of his visa should be revoked.

The timeframe for making the decision

13. If a person in the migration zone applies to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act provides that if the Tribunal has not made a decision 84 days after the date on which the person was notified of the decision, the decision is taken to have been affirmed by the Tribunal. Accordingly, it is necessary, to avoid this self-executing clause to have effect, for the Tribunal to make a decision, in this case, on or before 5 May 2021.

A new ministerial Direction – Direction No. 90

14. Section 499 of the Act provides that the Minister may make directions which a person or body must take into account in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
15. The delegate who refused to revoke the mandatory cancellation of NTTH’s visa consulted Direction No. 79, made under section 499. On 8 March 2021 the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made a fresh direction under section 499, Direction No. 90. Direction No. 90 (hereafter referred to as ‘the Direction’) commenced on 15 April 2021 and (at clause 3 of Part 1) revokes Direction No. 79 from that date. As mentioned, section 499(2A) of the Act requires that the Tribunal must comply with the Direction in considering this matter.
16. The question about which Direction to apply where a reviewable decision was made when one Direction was in force (or had been revoked), and then an applicant sought review by the Tribunal and the Tribunal made its decision after a new Direction had commenced, was considered by the Full Court of the Federal Court of Australia (Dowsett, Kenny and Mortimer JJ) in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48. The Full Court was considering a request for review of a decision of the Tribunal where the applicant submitted that a revoked Direction should still apply to him, because that was in place when he applied for review of the decision. The Tribunal Member had decided that the Direction applying at the time the Tribunal makes its decision is the one to which the Tribunal should have regard. In upholding that view, the Full Court held, at [4]-[6]:

4. The current version of the Direction is entitled “Direction No. 65”. That is the version the Tribunal applied in making its decision. The applicant’s contention is that the Tribunal should have applied the former version of the Direction, which is entitled “Direction No. 55”. In reliance on Esber v Commonwealth [1992] HCA 20; 174 CLR 430, he contends he had a right to a decision by the Tribunal on review that applied Direction No. 55 as the Direction which was in force at the time he made his application to the Tribunal in February 2013.

5. The focus of argument before this Court was on the characterisation of the Directions as either legislative or administrative in nature. In our opinion, the real issue is the application of s 7(2)(c) of the Acts Interpretation Act 1901 (Cth) and whether the applicant had acquired or accrued a right under Direction No. 55, upon which the terms of s 7(2)(c) could operate.

6. For the reasons set out below, we do not consider the applicant accrued or acquired any right under Direction No. 55, and therefore we would dismiss the application.

17. The Court went on to state that Mr Jagroop had failed to identify any ‘rights’ that he had lost with the revocation of the old Direction and the replacement of it with a new one. Therefore, the provision of section 7(2)(c) of the Acts Interpretation Act 1901, which is designed to prevent a person losing a right he or she had accrued or acquired under the law when that law is amended or repealed, is not affected by the making of a new Direction under section 499 of the Act and the revoking of the old Direction. This is because, in essence, the Direction provides guidance for decision-makers, including mandatory considerations, but the ‘right’ that the person has to review is found in section 500(1)(ba) of the Act, not within the framework of a Direction from time to time in force. It is always open to an applicant to make a submission that a new Direction may be less favourable to them in their particular circumstances from the one in force when a visa was refused or cancelled or a delegate declined to revoke a mandatory cancellation, and it is open to the Tribunal to consider such a submission on its merits (provided the submission is not directly at odds with the Direction in force), because the Tribunal is not confined only to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation.
18. The Tribunal therefore proceeds on the established principles that the Tribunal:

(a) is not constrained to consider only the material before the original decision-maker and may consider fresh material; and

(b) should apply the law and policy in place at the time it makes its decision. The Tribunal therefore considered, and will refer to, Direction No. 90 in these reasons.

HEARING

19. The hearing was held on 22, 23 and 26 April 2021. The Applicant was represented by Mr Greg Buchhorn, of counsel, instructed by Ms Yunn Chen of Hammond Lawyers. The Respondent was represented by Mr Adam Cunynghame, of Sparke Helmore Lawyers. The Applicant gave evidence and was cross-examined. Others who gave evidence were Mr Patrick Newton, clinical and forensic psychologist; the Applicant’s wife, Ms XW; Mr Eddy Kleynhans, clinical psychologist; Mr XK, a character witness; Mr XH, a character witness; Ms XC, a neighbour and character witness. The Tribunal was assisted by interpreters in the Albanian language.
20. The Tribunal admitted into evidence the following documents:
    • Volume of ‘GD’ documents collated by the Respondent (Exhibit R1);
    • Volume of supplementary GD, or ‘SGD’ documents collated by the Respondent (Exhibit R2);
    • Written statement of the Applicant dated 31 March 2021 (Exhibit A1);
    • Centrelink payment letter to Applicant’s wife dated 26 March 2021 (Exhibit A2);
    • Statement of Mr Patrick Newton, dated 25 March 2021 (Exhibit A3);
    • Letter from the Revd. Father Luciano Tolo, dated 24 March 2021 (Exhibit A4);
    • Letter from the Principal of a primary school dated 31 March 2021 (Exhibit A5);
    • Medical letter from The Northern Hospital, dated 11 February 2021 (Exhibit A6);
    • Medical letter from Dr Cindy Alatan, dated 19 April 2021 (Exhibit A7);
    • CT Cervical spine and pelvis USS, lodged 19 April 2021 (Exhibit A8);
    • Austin Health records, lodged 19 April 2021 (Exhibit A9);
    • Psychological report of Mr Eddy Klenyhans, dated 19 April 2021 (Exhibit A10);
    • Written statement of Ms XW (Exhibit A11);
    • Written statement of Mr XK, dated 31 March 2021 (Exhibit A12);
    • Written statement of Mr XH, dated 31 March 2021 (Exhibit A13); and
    • Written statement of Ms XC dated 26 March 2021 (Exhibit A14).

Has the Applicant failed the character test?

21. At GD, p 333 was a Nationally Coordinated Criminal History Check document produced by the Australian Criminal Intelligence Commission (‘ACIC report’) and dated 19 November 2020. It set out recorded court outcomes relating to the Applicant. Relevantly, it states that in December 2008 the Applicant was convicted of the offence of Cultivate Narcotic Plant Commercial Quantity – Cannabis at the County Court of Victoria and sentenced in relation to that offence to 3 years’ imprisonment.
22. The Tribunal also had before it the sentencing remarks of a Judge of the County Court of August 2019 in which Her Honour sentenced the Applicant in response to his plea of guilty in relation to one count of Trafficking a drug of dependence and one count of being a Prohibited person in possession of a firearm. The Applicant also agreed to have heard by that Court and pleaded guilty to one summary charge of the offence of Dealing in Property Suspected of Being the Proceeds of Crime, and one summary charge of Possessing a Prohibited Weapon, namely an extendable baton. Her Honour sentenced the Applicant (GD, p 55) to nine months’ gaol for the offence of trafficking a drug of dependence, followed by a Community Correction Order (‘CCO’) for 18 months. The Court also imposed a sentence of two months on the firearms offence. The Judge took into account 57 days served in pre-sentence detention, which meant a total sentence of around seven months to be served.
23. The Tribunal notes that in written submissions, and reiterated by Mr Buchhorn in his opening oral submissions, it was conceded by the Applicant that he did not satisfy the statutory character test.

Finding in relation to the character test

24. On the facts before me, the Tribunal finds that the Applicant fails the character test. This is because he has a substantial criminal record, having been sentenced in 2008 to a term of imprisonment of 12 months or more, and because at the date his visa was cancelled on 24 February 2020, the Applicant was serving a sentence of full-time imprisonment.

MIGRATION HISTORY

25. NTTH claimed in the past (SGD, p 139) to have first attempted to enter Australia in 2002, travelling on a false Italian passport. On arrival at Brisbane Airport he stated that he declared his real identity and claimed it was not safe for him to return to Albania. He said that he was detained in custody for two days and then removed from Australia, back to Italy.
26. The Applicant next arrived in Australia in December 2003. He again arrived on a false Italian passport. He applied for a protection visa using a Yugoslav passport under a different false name, but that visa was refused in February 2004. The refusal of the protection visa was affirmed by the (then) Refugee Review Tribunal in September 2004. The Applicant appealed to the Federal Magistrates’ Court, which affirmed the decision to refuse the visa. He then appealed to the Full Court of the Federal Court, which upheld the Minister’s decision in July 2006. These matters all occurred under NTTH’s assumed name.
27. In May 2008 NTTH disclosed his real identity to his migration agent and they both contacted the Immigration Department seeking to regularise his immigration status. He was granted a further bridging visa but five days later was arrested and charged with the cultivation of cannabis and remanded in custody.
28. NTTH was granted a bridging visa in August 2008 and further bridging visas between 2006 and 2009 and was then taken into criminal detention. The Applicant applied for a partner visa in November 2010 which was refused. The refusal was affirmed by the (then) Migration Review Tribunal on 30 November 2010. NTTH was taken into immigration detention in November 2010. He applied for a further bridging visa which was refused, and the refusal was set aside by the Migration Review Tribunal in March 2011. He applied for a further bridging visa in March 2011 and this was refused later that month. He appealed this decision and the Migration Review Tribunal affirmed the refusal in April 2011.
29. The Applicant departed Australia in February 2012 as the holder of a Class BS Subclass 801 Partner visa, which he had been granted based on his relationship with Ms XW, who is an Australian citizen. (They were married in March 2011). At the end of March 2012, the Applicant returned to Australia. He has since travelled out of Australia on only one other occasion, for a period of about two months in 2017 (GD, p 80).

OFFENDING HISTORY

30. The ACIC Report (GD, pp 30-31) lists court outcomes in Australia for the Applicant under his own name and lists ten aliases. His first appearance was in March 2007 before a Magistrates’ Court where he was charged with the offence of Cultivate Narcotic Plant – Cannabis. The Court did not record a conviction and placed NTTH on a Community Based Order for 12 months.
31. In November 2007 he was before the Melbourne Magistrates’ Court and convicted of the following offences: Possess false foreign travel documents (3 counts); Open account in false name (2 counts); Operate account in false name (2 counts); and Possess False document – obtain drivers licence in false name. He was sentenced to a total term of three months’ imprisonment to be released immediately on entering a good behaviour bond for one year.
32. In December 2008 at the County Court in Melbourne, NTTH was convicted of the following offences: Cultivate Narcotic Plant Commercial Quantity – Cannabis, and sentenced to three years’ imprisonment; Criminal Damage (intent to damage/destroy), and sentenced to 12 months’ imprisonment, six months to be served concurrently; Possess Cannabis, and sentenced to 9 months’ imprisonment, to be served concurrently; Theft, and sentenced to six months’ imprisonment (three months to be served concurrently). The total aggregate sentence was therefore three years and six months.
33. In May 2009 NTTH was before the Melbourne Magistrates’ Court and a charge of Fail to Comply with Conditions of Order was found proven. The original order was revoked, and he was re-sentenced in relation to the matters for which he was convicted in November 2007 and given a total effective prison sentence of three months.
34. In December 2013 the Applicant was convicted of the offence of Possess on Court Premises an Offensive Weapon. He was fined $750.
35. In July 2015 the Applicant was convicted at the Melbourne County Court of the offences of Drive Whilst Authorisation Suspended; Burglary; and Theft. He was given a CCO for three years to perform 150 hours of unpaid community work.
36. In February 2017 NTTH was before the County Court again and convicted of Contravene Community Correction Order, and then discharged.
37. In August 2019 he was before the County Court in Melbourne. He was convicted of the following offences: Traffic Drug of Dependence, and sentenced to nine months’ imprisonment with an 18 month CCO to commence on completion of term, to perform 150 hours of community work; Prohibited Person Possessing a Firearm, and sentenced to two months’ imprisonment, to be served concurrently; Possess Prohibited Weapon without Exemption or Approval, and sentenced to seven days’ imprisonment, to be served concurrently; Deal in Property Suspected the Proceeds of Crime, and placed on a CCO for 18 months to commence on completion of prison term.

ORAL EVIDENCE OF THE APPLICANT

38. NTTH told the Tribunal he was born in 1975 in a village in northern Albania. It is a small village surrounded by small farms with no real industry. He said he grew up in a poor family. His parents, who are now pensioners, still live in the village, as does his adult brother.
39. NTTH said that he completed eight years of school, finishing at about the equivalent of grade 8 in Australia. He said his writing and reading in Albanian was not good, but he does know how to read and write.
40. NTTH said he left Albania in 2002. He said he grew up as an adherent of the Albanian Catholic Church and then as a young man met a girl who was Muslim. They commenced a relationship. She fell pregnant. NTTH said the girl’s family were not happy with her being in a relationship with him. She had an abortion. In 2002 NTTH said that he left Albania and came to Australia, via Italy.
41. The Applicant said he arrived at Brisbane Airport and presented a false Italian passport. He said he told immigration officers he was, in fact, Albanian. He said he was put into custody for one or two days and then sent back to Italy on the next available flight.
42. In 2003 NTTH said he again travelled to Australia and arrived at Sydney. He was again travelling on a false Italian passport, but under a different name to the first one he travelled on the previous year. He was cleared through immigration.
43. NTTH said that after ‘about a month’ he went to the Department responsible for Immigration (‘the Department’) and gave a further different name and related a different history. NTTH said “I did not want to be sent back again”.
44. After some time, NTTH said he was stressed by the fact that he had not told the truth and made the decision to put everything forward truthfully. He went to an immigration agent and told her his real identity and the circumstances, and the agent accompanied him to visit the Department to make full disclosure.
45. NTTH said he was granted a bridging visa which had several conditions including no permission to work, no permission to study and no permission to move to a different location.
46. NTTH said it was a difficult period for him because he had no income and “I went the wrong way”.
47. In respect of his 2007 offence for cultivating cannabis, NTTH said that he went out and had some drinks and met some people. They said they would employ him, “and paid me a bit of money. I started smoking marijuana”. He said he agreed to become involved in their activities simply as a way of getting some funds.
48. NTTH agreed that a conviction was recorded, and he was fined and ordered to undertake a Community Based Order for 12 months to perform 120 hours of community service. The Applicant said he completed the order.
49. Regarding the convictions later in 2007 for possessing false foreign travel documents and other identity-related offences, NTTH said “all the documents I had were provided by the group of people I was involved with”.
50. In respect of the December 2008 convictions for cultivating a commercial quantity of cannabis, NTTH said “I was smoking marijuana, that is why I ended up with these boys. They asked me to get a house and go and water plants at a certain time”.
51. NTTH told the Tribunal he did not know where the plants came from. He denied setting up the equipment in the house to irrigate the plants or setting up apparatus which drew electric power on the account of the property owner. NTTH said he was paid “a bit of cash and cannabis as well”.
52. NTTH said that when he went to Court, “the lawyer didn’t help me at all. The lawyer was from these guys”. The Applicant named his solicitor as (the late) Mr Pino Aquaro. He said that a barrister was also arranged to represent him at the Court appearance and named her as Ms Nicola Gobbo.
53. NTTH said that when he spoke to Ms Gobbo, she advised him not to mention other names. “She told me you’ll get six months in gaol, then you will be out”. The Applicant said he took the blame because he was in the house and was watering the plants, and he told the Tribunal “I feel I was guilty”.
54. Mr Buchhorn asked the Applicant whether Ms Gobbo asked any questions about him personally. NTTH responded: “No. She asked where I was from. Nothing else”.
55. Mr Buchhorn asked NTTH whether Ms Gobbo asked him about his physical health. NTTH said “I was very sick, but she didn’t ask about that”.
56. NTTH said that Ms Gobbo did not ask him about his mental health, or any drug-use issues he had.
57. While in gaol, the Applicant said he undertook some courses on drug and alcohol and violence. He said: “I learned not to associate with bad people, which was a big lesson for me. There was only one person in my life when I got out, my wife”.
58. NTTH said he learned that illicit drug use and alcohol were “not good. I don’t involve now”. The Applicant said there were no incidents involving him in prison and he then went into immigration detention and then was released onto parole for 18 months.
59. Mr Buchhorn asked NTTH about the 2013 conviction for having an offensive weapon on Court premises, for which he was fined $750. NTTH said that he went with his wife to pay some fines at the court and they had a bag with them. The Applicant said he had one month before bought a knife which was on sale in a shopping centre. He said he forgot it was still in the bag, and he had no intention of using it. He was stopped by security at the Court; NTTH said he paid the fine imposed.
60. When asked about the 2015 offences, NTTH said he was ‘completely drunk’ and could not remember the details. He said his wife was sick at the time, as well as being pregnant and under a lot of stress. He told the Tribunal they had lost two children and he was also stressed and “couldn’t think straight”.
61. NTTH said that Ms XW was required to have complete bed rest by her doctor, because of her history with unsuccessful pregnancies. The Applicant said he was working and trying to look after his daughter and his wife, and doing all the domestic chores, “that is why I lost my job”.
62. NTTH said he was given a 150-hour CCO in relation to the 2015 offending, which he completed. He said he was required to participate in drug and alcohol intervention programmes, which he said he did. At this time, NTTH said he saw a psychologist, Dr Alex Wynd, and saw Dr Wynd for several sessions but stopped because of the expense.
63. In respect of the offence proven of contravening a CCO, NTTH said he had accumulated demerit points and did not realise he should not be driving, and that was a breach of the CCO. The Court did not take any further action.
64. Mr Buchhorn asked NTTH how he came to be involved in the offending which led to his 2019 convictions. The Applicant said that he was undertaking community work in fulfilment of his CCO obligations and met a person. He said at the time the owner of the house he and Ms XW and their young daughter lived in wanted them to move out because the owner wanted to sell the house. NTTH said he went to the bank to see if he could obtain a mortgage but was not successful because he did not have the required deposit.
65. NTTH said that he thought he could make some extra money, so he told a person he could supply drugs but instead gave him a different product, holding out that he was supplying a drug called 1,4 Butanediol, which is colloquially known as ‘BD’.
66. Mr Buchhorn asked the Applicant what he thought he was supplying. He said “I know it wasn’t drugs. It was something like body or washing liquid”. The Applicant was asked directly by the Tribunal whether someone else had given him this liquid, NTTH said “Yes”.
67. Mr Buchhorn asked NTTH about the police coming to his house and finding a firearm, which led to the offence of being a prohibited person in possession of a firearm. NTTH said an acquaintance had given him some furniture, including a couch, to store in his garage. When moving the couch, the Applicant said he found a firearm. He said he was worried his young daughter might find it, and so he wrapped it in a cloth and hid it inside a dishwasher in the garage. He said he telephoned the acquaintance and asked him to come and collect the gun, but the person did not. NTTH agreed that he should have called police and surrendered the weapon, because he knew he was not allowed, because of his past convictions, to be in possession of a firearm.
68. NTTH said he was taken into custody for a period and in July 2020 was granted bail on condition he does not leave Victoria; he reports to the police each day and he does not contact certain named people.
69. NTTH said he abided by all the bail conditions and then was sentenced in August 2019 to nine months in prison, to be followed on release by completion of an 18-month CCO with judicial monitoring.
70. The Applicant said he undertook courses on alcohol, gambling, family and community. He said he learned better ways of leading a good life with his family and with friends, rather than associate with bad influences. NTTH said he could not now drink alcohol because of gastric problems. He said that he was subject to random drug tests in prison and always returned clear results.
71. When asked about his attitude towards his past offending, NTTH said: “I am very sorry about my offences. For this country and the community. This country has accepted me to be here. I am sorry for my wife and daughter and for destroying their life. I swear I have changed now. My daughter is the only reason to be in this life. I am also sorry for my wife because we have lost a child twice. I feel very guilty about what I have done. I am over 40 and feel very ashamed. I feel sorry my daughter has to come and see me in a detention centre. I want to say sorry to the government”.
72. NTTH said that Ms XW had two miscarriages and then sadly had a child stillborn in November 2018. He felt that the stress she was under because he was in custody was the reason for this.
73. NTTH agreed that he had received warnings from the Department in 2011 and 2016 about his offending and how it might affect his immigration status. He said: “I didn’t take them seriously. I didn’t think about the consequences. Everything I have done has led to this”. NTTH said he feels sorry he did not take the warnings seriously.
74. Mr Buchhorn asked NTTH what he would do if he was permitted to stay in Australia. NTTH said: “The first thing I want to do is go out and work to look after myself and my family. I don’t drink alcohol or do drugs any more. I want to be good for my family. I need to continue to see my doctor for my health issues, and I would like to see Dr Wynd”.
75. NTTH then told the Tribunal about his relationship with his daughter, XD. He said he did the usual things a father does, such as drop her off or pick her up from school, go to the park and go and buy ice cream. The Applicant said during the period when his wife was prescribed complete bedrest, he did the washing and cooking and laundry, and all the things his wife could not do.
76. NTTH said he could not see his daughter for one year because of the pandemic restrictions on visits to the detention centre but can now receive visits from her and Ms XW twice a week, and does. During the restrictions he said he kept in contact with her and her mother by phone or social media applications, each day.
77. NTTH said he would keep in contact by phone if repatriated to Albania, but it would be very hard on Ms XW because she has no family in Australia at all.
78. In respect of his relationship with his wife, NTTH said they met in 2006. He said they had never had a fight and had a good relationship. The Applicant said that his wife left Albania ‘after a tragic event’ which means she does not talk to her family as a consequence.
79. NTTH said he had worked in the past as a plasterer and while on bail had undertaken a heavy vehicle licence to improve his employability. He said that there is a person willing to offer him a job, who he had worked for in the past.
80. NTTH said that he had a history of stomach problems and it has been two years since he last saw a specialist. He said: “I’ve had problems for about ten years but didn’t pay attention. It comes and goes. The last three years have been really bad. I am currently bleeding, and maybe it is getting worse from the stress”. NTTH said he had visited the hospital the week before the hearing with stomach issues.
81. In terms of his family, NTTH confirmed he had two siblings: a brother in Albania and a sister who now lives in Italy. He said he did not have a good relationship with his brother because he felt he did not support their parents enough.
82. NTTH was referred to remarks in his statement about the Albanian public hospital system being corrupt. He said he knows that not only from what his parents had told him but also what he had learned on the Internet. He said that public hospitals do not usually offer help and would not have the medication he is currently prescribed for his physical complaints, and he would have to go to a private hospital and pay if he required them.
83. Mr Buchhorn asked NTTH what he knew about Kanuni Law. The Applicant said it is a very old law followed especially in the north of Albania which affects both him and his wife. He said that according to Kanuni Law, because his wife had been previously promised to another, it is interpreted that he has ‘taken someone else’s wife’. NTTH said that this does not go away. The Applicant was asked whether he knew where the people were who might hold this against him, and he responded: “I am not sure where they are. They might be in Albania.”
84. When asked whether, if repatriated, he would go back to the north of Albania, NTTH said: “Yes. I have nowhere else to go.”
85. Under cross-examination, NTTH was asked about his 2009 offending and legal representation and whether he thought the sentence imposed was fair. The Applicant responded: “I think it might be fair. I feel guilty about what I did in the past but feel I didn’t have the opportunity to explain to the judge. I pleaded guilty to what I didn’t do.”
86. The Tribunal asked the Applicant directly what he meant by this. NTTH said: “For example, I pleaded guilty for the use of the electricity and for the damage to the property that I didn’t do.”
87. Mr Cunynghame asked why did NTTH think it matters that he didn’t get the opportunity to explain himself when he pleaded guilty as charged. The Applicant responded: “I think it would have been different. My lawyer said don’t name names and you will get six months and it will all be finished.”
88. When asked whether he appealed the sentence, NTTH said: “The lawyer told me we would appeal. One week before he told me we had better not because we will get more. I didn’t have an interpreter on the day I was arrested or the day I was sentenced.”
89. When asked directly by the Tribunal who he meant when he said, ‘the lawyer’, NTTH said: “Pino Aquaro. I didn’t see the barrister again.”
90. Mr Cunynghame asked the Applicant about taking a knife onto Court premises. NTTH said he had bought it at a sale a barber shop was having. He said it was a kitchen knife, ‘beautiful and very cheap’.
91. When asked about the firearm police found in the garage, and why he had hidden it and not disposed of it, NTTH said: “I didn’t think about it. I thought it was old. I found it among my friend’s things. I told the person to come and get it.”
92. The Respondent’s lawyer then asked NTTH about a written statement he had made to the Department (SGD, p 57) after his 2011 warning from the Department, which had been prepared by the Applicant’s migration agent. NTTH agreed that he had instructed it be prepared and had signed it.
93. When asked about his intestinal issues, NTTH said they have persisted for about ten years. He said he thought a gastric ulcer had worsened because of him taking alcohol and the last three years it has been ‘coming and going’. The Applicant told the Tribunal his doctor had now told him to have no alcohol at all.
94. NTTH was read part of a written statement he had made (GD, p 97) in which he said he would have to ‘go into hiding immediately’ if returned to Albania. When asked who he would be hiding from, NTTH said ‘ZD’, the ex-fiancé of the Applicant’s now wife.
95. He said that ZD and his family would torture him if he returned. He told the Tribunal he had never met ZD, nor spoken to him. When asked how ZD would find him, NTTH said: “My village is a small village. If someone sees me around the word will spread that I am back in Albania.”
96. NTTH said that ZD and his family ‘feel offended’ about what has happened and ‘have to find my wife and my daughter’ and according to Kanuni Law “they have to kill both of us, both the female and the male.”
97. When asked why ZD had not simply asked his parents where he now was, NTTH said: “The shame is against my wife. They are going to kill me instead of her.”
98. NTTH said: “In the past he’d [ZD] ask people where I was. Everything is possible. He could ask where I am. I know from my parents he’s been asking. They told me five or seven years ago.”
99. When asked did his parents tell him how they knew ZD was looking for him or did ZD ask them directly, NTTH said: “Not directly. He sent a message to XW’s family. I’m not sure how they got to know about it. XW’s sister lives in America. She gave the message to XW.”
100. Mr Cunynghame reminded NTTH that he wrote in a statement (GD, p 98) that Ms Gobbo “insisted I plead guilty as I would face lesser charges and not be jailed so I agreed.” He said in his earlier evidence in chief before the Tribunal that he pleaded guilty because he had been told he would only get a six-months sentence and was asked which of these was correct. NTTH said “I didn’t want to plead guilty because I wanted to tell what the truth was. I pleaded guilty for everything. I thought I would get six months.”
101. NTTH said he was informed that Ms Gobbo was ‘working with others because they were paying’. The Applicant was asked directly by the Tribunal who informed him of this, NTTH said “Because I saw the news about Ms Gobbo. The Government sent me a letter a year ago about Ms Gobbo.” The Tribunal asked NTTH whether he responded to the letter from the Government. He replied: “I think my wife gave it to a lawyer; I’m not quite sure.”
102. NTTH said he speaks to his parents twice a week, and weekly to his sister in Italy. He said he speaks less frequently to his brother, mainly if he is visiting their parents then they might hand the phone over.
103. When asked about the 2016 warning he received from the Department, NTTH said he remembered engaging a lawyer and migration agent, Mr Lawson Bayly. The Applicant said he remembered instructing Mr Bayly to make representations to the Department on his behalf.
104. Mr Cunynghame referred to the submission made on behalf of the Applicant (SGD, p 172) in 2016 by Mr Bayly in which it was conceded that he was not directly owed non-refoulement obligations; but that his wife was not able to return to Albania as a result of fears of persecution that had been accepted by the (then) Refugee Review Tribunal. When asked whether he remembered discussing this with his lawyer, NTTH said he could not remember.
105. The Tribunal asked NTTH about his departure from Australia in 2012 for around one month. NTTH said that he went to Montenegro but did not travel into Albania. He said his parents came across the border to visit him and stayed in a house he procured, where he had stayed in the past. He said he did not see his brother on this occasion.
106. The Tribunal asked NTTH whether it was possible that Ms Gobbo asked him about his background. He responded: “I did not speak English at that time.”
107. The Tribunal noted that the transcript of the sentencing remarks shows that, at the conclusion of the sentencing remarks, Ms Gobbo sought permission to speak to NTTH in the dock and asked what she said to him. He replied: “I didn’t understand. She told me I got three years and nine months.”
108. The Tribunal said to NTTH that if he is repatriated to Albania, he did not have to go back to his home village, he could go somewhere else in the country, such as the capital Tirana. NTTH said “Even if I go there, I could be exposed. I have never been to Tirana. I could only stay elsewhere in Europe for a maximum of three months.”

ORAL EVIDENCE OF MR PATRICK NEWTON

109. Mr Patrick Newton, clinical and forensic psychologist, gave evidence. He confirmed the contents of his report dated 1 June 2020 (GD, pp 153-161) and his more recent statement (Exhibit A3). Mr Newton confirmed he had assessed NTTH on 23 and 30 April 2020 by video link when the Applicant was at an immigration detention centre.
110. In the report, Mr Newton reported that NTTH told him that his past illicit drug use had been cannabis. Mr Newton said he had since seen other documents produced under summons which indicated that NTTH did have a short period of use of methamphetamine and cocaine, but he said that this additional information (SGD, p 276 and SGD p 325) did not affect the conclusions he had made in his report.
111. Mr Newton said: “Had I known that; I would have reported more extensive use of drugs. Having said that, historical use of drugs does not have a material effect on my conclusions except for the fact I would have included a reference to more extensive drug use.”
112. Mr Buchhorn asked Mr Newton to expand on the Risks-Needs-Responsivity Framework he had used to assess NTTH’s risk of re-offending. Mr Newton said this framework is a long-standing tool used to assess the criminogenic risk of a particular criminal, their needs and what interventions are needed. It is used to underpin offender management in Victoria. Mr Newton said that there are particular tools used when the subject has been convicted of sexual or violent offending, but as that is not the case for NTTH, he applied the general tool.
113. Mr Newton said that the framework is ‘robustly reliable’ and used in Victoria to assess suitability for parole. Mr Newton then was taken through the table in his report detailing the measures against which he had assessed NTTH to inform his conclusion that there was a “low risk” of the Applicant re-offending. In summary, in the category of ‘strong factors’, while the domain relating to significant criminal history was immutable, the domains of antisocial personality, pro-criminal attitudes and criminal associates were all found, at the time of the assessment, to not be present, and in the category of ‘moderate factors’ all the domains listed: family/marital maladjustment, employment problems, substance abuse and leisure/recreational activities were found to not be present.
114. Mr Newton emphasised that NTTH had made progress. He said that he had based his conclusions not solely on what the Applicant told him, but also on character references, particularly in regard to the lack of contemporary association with past criminal associates. Mr Newton said: “If NTTH goes back to using drugs or alcohol, there would be a higher risk” of re-offending.
115. When asked directly by the Tribunal what he meant by assessing NTTH as adopting a ‘concrete approach’, which was also a conclusion of Dr Barth in an earlier assessment, Mr Newton said this means that a person “deals with a world of objects rather than ideas. A person who does things rather than thinks about them. The Applicant has a more limited behavioural repertoire than most because he has had poor schooling and has poor problem-solving skills.”
116. Mr Buchhorn asked Mr Newton whether NTTH’s experiences and courses in prison and detention would assist him. Mr Newton responded: “Yes, those experiences would help. Moreover, he has a Community Corrections Order still to complete, which would provide a way to learn new strategies and a corrections officer would identify the consequential reasoning.”
117. Mr Newton said that he considered the fact that the CCO would involve judicial monitoring would provide NTTH with clear and tangible monitoring by a person in authority, and a clear message that the system is saying to him ‘Don’t mess this up’.
118. Mr Newton noted that NTTH has the support of his family and friends and that it would be important for him to engage in pro-social networks. He expressed the view that NTTH “may benefit from some mental health help because his level of anxiety was a bit higher than usual.”
119. Under cross-examination Mr Newton was asked if it would concern him to know that NTTH had undertaken some courses in 2010 designed to reduce his risk of re-offending. He responded: “I wouldn’t put it as high as concern, but I am puzzled by the fact that it wasn’t disclosed to me because it would have been in his interests to disclose that.”
120. Mr Newton said he had a ‘degree of scepticism’ about the remorse and regret and expressions of an intention to do better, expressed to him by NTTH because he has made similar remarks in the past, but concluded that his understanding of the need to abandon pro-criminal attitudes was ‘largely if not completely resolved’.
121. The Tribunal asked Mr Newton whether he had an interpreter for the two sessions he undertook with NTTH and, if not, did he think the language barrier presented any challenges. Mr Newton responded: “No, there was no interpreter. He was fluent and cogent. He gave me no reason to believe he didn’t understand.”
122. Mr Newton agreed with the Tribunal that the Applicant is currently in a controlled environment (in detention) and therefore the availability of alcohol and drugs was not as it is in the community, and he agreed, and told the Tribunal: “Even if he wanted to now, he can’t drink [because of his gastric condition]. I was looking for what will trip him up. His understanding is simple or simplistic. There is good evidence he has made a choice to end his substance abuse.”

ORAL EVIDENCE OF XW, WIFE OF THE APPLICANT

123. Ms XW gave evidence that she met NTTH in 2006. She said that they commenced a romantic relationship soon after and she married the Applicant in 2011. She said that NTTH gave her mental support, physical help when she had not been well, and financial support.
124. Ms XW said she had first seen Mr Eddy Kleynhans for psychological support in 2010, and saw him about every month in 2010, 2014, 2018, 2020 and 2021. She told the Tribunal she is on antidepressant medication which was first prescribed in 2010 but she had to stop taking it when pregnant.
125. Ms XW said that in February 2021 she had gone to pick up her daughter from school and had a call from her and NTTH’s lawyer advising that the Respondent’s delegate had refused to revoke the cancellation of the Applicant’s visa. That evening she had a panic attack and a neighbour called an ambulance.
126. When asked what she would do if NTTH was repatriated to Albania, Ms XW said: “This is a question I have often asked myself. If my husband goes back to Albania, I don’t know what would happen.”
127. Ms XW confirmed she regularly saw Dr Alatan, her general practitioner, relating to chronic neck pain, spinal issues and other health challenges, which have affected her daily activities.
128. Ms XW said that NTTH’s relationship with their daughter is very close. She has not told her where her father is, when he has been in prison and more recently in detention, and the daughter believes he is away building a house for them. She said that they both regularly contact NTTH through video and phone calls and more recently personal visits twice a week, now that the pandemic restrictions have been eased.
129. Ms XW said that she had broken Kanuni Law in Albania by coming to Australia and then marrying NTTH when she had been promised to another man: “My ex-fiancé will get revenge on him.”
130. When asked how she knew that ZD was still looking for her, Ms XW said: “Through my sister. These things have always been there.” She said she had last discussed ZD with her sister six years ago.
131. Mr Buchhorn asked Ms XW what her understanding of ZD’s knowledge of NTTH was. She replied: “He might have a lot of information, that we are married and have a daughter. My sister said that if NTTH goes back to Albania you never know what is going to happen to him.”
132. Under cross-examination, Ms XW said she had never been back to Albania since arriving in Australia. She said that she had family in Albania but has not had contact with them for many years and did not know if they are alive or dead, or still in Albania.
133. Ms XW said the last time she spoke to ZD was the day she left him. She said that ZD had never met NTTH nor spoken to him. She told the Tribunal that her knowledge of ZD’s interest in NTTH is obtained from her sister.
134. Ms XW said that her sister, who now lives in the USA, also had a disagreement with their parents but she does keep in touch with them, but Ms XW chooses not to ask her about her parents because “I had a big trauma in my life.”

ORAL EVIDENCE OF MR EDDY KLEYNHANS

135. Mr Kleynhans confirmed the contents of his report dated 31 July 2020 (GD, p 105) and his report dated 19 April 2021 (Exhibit A10). He said he first treated Ms XW in 2020 and has had a continuing treating relationship with NTTH’s wife since that time, seeing her less frequently when ‘things are going ok’ and on a ‘roughly monthly basis whenever there is a crisis’.
136. Mr Kleynhans said he discussed how Ms XW was coping with her depression and issues around conception, given that she had had several miscarriages and was “an anxious person as well.”
137. Mr Buchhorn asked whether the diagnosis of Major Depressive Disorder not in remission was still Mr Kleynhans’ diagnosis today. Mr Kleynhans said: “Yes. Perhaps some of the postnatal features have subsided. I’ve found with people who have had trauma all the old features can re-appear.”
138. He said he last saw Ms XW in January 2021 and found her severely depressed with some suicidal ideation, and he told the Tribunal that Dr Alatan had prescribed an antidepressant and at one stage a mild tranquiliser.
139. In reference to the panic attack in February 2021, Mr Kleynhans said he was aware of that and it indicated to him that Ms XW’s PTSD symptoms had resurfaced. He considered that if NTTH was removed from Australia there would be negative prognosis and a deterioration in Ms XW’s mental condition.
140. When asked whether he was familiar with XD’s development, the witness said: “Vaguely. I have seen XD on two occasions. She is quite a hyperactive child, which is for me a sign of anxiety.”
141. Under cross-examination Mr Kleynhans confirmed he had seen NTTH as a patient about his substance abuse. He said one of the strategies to help such people is to get a job and not associate with other drug users, and he thought NTTH did benefit from that advice but considered there needs to be regular reviews, engagement by the person and a firm commitment not to associate with others who take drugs.

ORAL EVIDENCE OF MR XK

142. Mr XK gave evidence. He holds a senior position in an Albanian Catholic Church organisation which holds special events on important dates during the year such as Easter, Christmas and New Year. He said he had known NTTH for around ten years. When asked his view on NTTH, Mr XK said: “He is nice to me and our community. I am sorry for what has happened to him. He helps organise functions and attends them.”
143. Mr XK said that he and the organisation would aim to help NTTH if he can stay in Australia and assist the family.

ORAL EVIDENCE OF MR XH

144. Mr XH gave evidence that he had known the Applicant for ten years and that his wife and Ms XW are also friends, and his children regularly play with XD. He said he sees NTTH about once a month or once every two months.
145. He said he had spoken to NTTH in detention and NTTH had remarked to him about what he had done and ‘he feels very bad’. Mr XH reminded NTTH that he had obligations to his wife and daughter.
146. Mr XH told the Tribunal that he had put his house up as surety for NTTH’s bail most recently, in the amount of $100,000 which indicated the trust he placed in the Applicant, and he said that his trust had not been misplaced, because NTTH complied with all the bail conditions.
147. Mr XH said he was aware of NTTH’s work skills and would aim to provide support if he is released into the community. He said he was unaware of the details of the 2008 convictions, but he knew NTTH had served a sentence of imprisonment for those offences.

ORAL EVIDENCE OF MS XC

148. Ms XC is a neighbour of NTTH and Ms XW and gave evidence that she had known them since June 2018. She said that NTTH was a very good neighbour and had offered to cut her lawn and helped her move some heavy furniture which her husband could not, because he has a bad back. Ms XC said her daughter is the same age as XD and they play together. She said NTTH would take her daughter and XD to the park. She estimated she would see NTTH three or four times a week.
149. Ms XC said her assessment is that NTTH is a dedicated father to XD. She knew that he read her stories, bathed her and fulfilled the usual fatherly duties.
150. Ms XC said she was aware of NTTH’s 2008 and 2018 offending, leading to the 2019 convictions. She said she observed a slight decline in NTTH’s mood during the period he was on bail but saw him as a good neighbour.
151. Ms XC said her view was that NTTH and Ms XW were respectful to each other and had a good relationship. She said she was the one who called the ambulance in February 2021 when Ms XW had a panic attack and she looked after XD overnight when Ms XW was taken to hospital. Ms XC considered that Ms XW is “heavily reliant on NTTH; she has no family of her own.”
152. The witness said she had some contact with NTTH since he has been in custody and considered that the Applicant did not appreciate the depth of bond between a father and daughter and what he has done to his family. Ms XC said it would be ‘disastrous’ for XD if NTTH was deported.

CONSIDERATION OF THE DIRECTION

153. At paragraph 5.2, the Direction sets out principles which provide the framework within which decision-makers should approach the task of deciding whether to revoke a mandatory cancellation of a visa under section 501CA of the Act. The principles are:

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

(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

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

(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

154. The Direction also provides (Part 2, paragraph 7) that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
155. Part 8 of the Direction relevantly provides that, in making a decision under section 501CA of the Act, the following are primary considerations:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the best interests of minor children in Australia; and

(4) expectations of the Australian community.

156. Part 9 of the Direction provides that, where relevant, other considerations must also be taken into account. These considerations include, but are not limited to:

(a) International non-refoulement obligations;

(b) Extent of impediments if removed;

(c) Impact on victims;

(d) Links to the Australian community, including (i) strength, nature and duration of ties to Australia and (ii) impact on Australian business interests.

157. It is important to note the wording in paragraph 9(1) of the Direction, which makes clear that the other considerations include those stipulated in the Direction, but a decision-maker is not confined only to those. This means that if there is another articulated claim that something is relevant in the particular circumstances, and the claim relates to a matter that is consistent with the purposes of the Act, that claim should be properly addressed. Any such claim must be material to the matter being considered, which is the exercise of a discretionary power under the Act.

Primary Consideration: Protection of the Australian community (paragraph 8.1)

158. The Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct and 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 conduct (paragraph 8.1.1)

159. The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence. None of NTTH’s offending, on the evidence, fits within these categories.
160. The Tribunal must also consider other categories of serious offending, including causing a person to enter into, or be a party to, a forced marriage; crimes committed against vulnerable members of the community, such as the elderly and disabled, or government representatives performing their duties as such, and any crime in immigration detention.
161. There was no evidence before the Tribunal that NTTH’s offending fits squarely within these categories, although the Tribunal may infer that cultivation of an illegal narcotic is part of a supply chain that affects vulnerable persons in the Australian community, namely drug addicts, and is part of a broader activity that is severely detrimental to civil society.
162. It could be interpreted that NTTH’s conviction for having a prohibited weapon on Court premises has some elements that may contribute to it being classified as a crime against government officials. The evidence of NTTH was that he had bought a kitchen knife, or ‘a knife that opens and closes’ in his evidence, some weeks before and had it in a bag when he and his wife attended a Court building to pay some fines. Whether that explanation may be accepted, it nonetheless resulted in a conviction and a fine of $750.00 plus Court costs. On the material before me, I am not satisfied that there was malicious intent in NTTH taking the weapon into the Court precincts, but he was at least reckless in so doing.
163. In terms of NTTH’s convictions for possessing false travel documents, and associated identity related offences, these fall squarely within the bounds of paragraph 8.1.1.(1)(f) of the Direction, whether the non-citizen has provided false or misleading information to the Department. Some explanation may be gleaned from the circumstances of NTTH’s arrival in Australia, but it underlines the fact that he was prepared to enter Australia under false pretences and then continue a further subterfuge through the then Refugee and Migration Review Tribunals, right up to the Full Court of the Federal Court, maintaining a fiction that he was Serbian and of another name and relying on a concocted life story. That conduct significantly tells of his character at that time.
164. In respect of NTTH’s 2008 convictions for cultivating a commercial quantity of cannabis, NTTH intimated to the Tribunal that his only role was to water the plants, provided by someone else. It was in response to a direct question from the Tribunal that he agreed that he had in fact rented the property where the hydroponic operation was set up and had done so in a false name. Therefore, I conclude that his involvement was more than just being a ‘crop sitter’. NTTH said he did not arrange the electricity apparatus to support the cannabis cultivation, nor did he knock holes through the walls and ceiling of the premises to facilitate the cabling and irrigation lines, which led to his convictions for, respectively, the crimes of Theft and Criminal Damage (Intent to Damage/Destroy).
165. He did concede to the Tribunal that he ‘felt guilty’ which is why he pleaded guilty to the offences to which he was sentenced at the end of 2008. The sentencing Judge at that time (GD, p 59) referred to NTTH’s counsel conceding before the Court that the Applicant’s actions were done for the purposes of survival, to raise money, and that he was not a drug user. The Judge took into account the guilty plea and granted a reduction of sentence to reflect that plea. The Judge also took into account the hardship NTTH had faced and his deprived background, as set out by his barrister in what His Honour described as ‘her eloquent plea’, and said this gives some context to NTTH’s offending and some understanding as to why he did offend. However, the Judge also said it was sophisticated offending and NTTH knew what he was doing was wrong.
166. To the extent that some of NTTH’s evidence at this hearing sought to retreat from his criminal responsibility for the offences of which he was convicted in December 2018, the Tribunal makes clear, as it did during the hearing, that a plea of guilt means that a person accepts all the elements of the offence. That is settled law. The leading case is Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 (Maxwell). In that case Dawson and McHugh JJ said, at [19]:

An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise.

(Emphasis added. Footnote omitted.)

167. In addition, as counsel for the Applicant readily conceded, it is also well established that the Tribunal cannot engage in an inquiry that would go behind a conviction. Relevantly, the Full Court of the Federal Court of Australia (Branson, Lindgren and Emmett JJ) stated in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197 (SRT), at [40]-[45]:

The manner in which the Tribunal satisfies itself is determined by s 33 of the Administrative Appeals Tribunal Act 1975 (Cth). Under that provision, the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate. But where the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. The starting point for consideration by the Tribunal in relation to sentence, when concerned with the question of an order under section 200 of the Act, must be the findings made by the judge in imposing the sentence that satisfies the statutory description of a sentence of imprisonment for a period of not less than one year.
There are good policy reasons why such a principle should prevail. It could only undermine the criminal process for an administrative decision to be based on considerations inconsistent with the conviction or sentence imposed.
Counsel for the respondent submitted that, so long as the decision-maker accepts the fact of the sentence, it is open to the person sentenced to challenge any finding of fact made by the sentencing judge in the course of imposing that sentence. We reject the submission and, as explained later, we do not understand Davies J to have gone so far in Beckner.
Wood J found that it was the respondent who inflicted a stab wound to the heart that was a direct cause of the death of the Deceased. His Honour considered that the jury, having rejected the respondent's statement from the dock must, by their verdict, be taken to have accepted the evidence of two police officers. His Honour considered that the jury verdict in that regard was entirely understandable. He went on to say:
"To kill a man in his own flat, in the brutal and cowardly way which occurred in this case, is a matter which can only attract the abhorrence of the community. It is the kind of offence for which there must be not only personal punishment and retribution, but also a substantial element of general deterrence."
It was on the basis of these findings made by his Honour that the sentence was imposed. It is a matter of speculation as to what sentence Wood J would have imposed had he found different facts. It may be that his Honour would still have sentenced the respondent to imprisonment for a period of not less than one year. Be that as it may, the basis upon which he imposed the sentence that satisfied the requirements of s 201(c) of the Act is impugned by the reasoning of the Tribunal.
To impugn the sentencing process in that way is bad as a matter of public policy. It is improbable that the legislature intended that an administrative tribunal with wide investigatorial powers, not bound by the rules of evidence and free to inform itself from any source, should review the essential factual bases of a conviction and of the resulting sentence. The policy must be that a conviction, and a sentence imposed as a result of a conviction, are matters for the criminal law and its procedures. If a sentence, like a conviction, is otherwise than in accordance with law, a right of appeal is available to remedy any miscarriage of justice. If new or fresh evidence comes to hand, again criminal procedures can be availed of.

168. Some of NTTH’s evidence was directed towards the fact that there were others involved in the cannabis cultivation operation which resulted in the 2008 convictions; that much may be accepted, because others involved in the trafficking operation had a separate trial (GD, p 34). However, to the extent that NTTH is now suggesting that he should not have been convicted of the summary offences of Theft and Criminal Damage, to which he pleaded guilty, the Tribunal makes clear that it rejects that proposition. The Full Court of the Federal Court of Australia considered the question where the Tribunal accepted an argument put by an applicant who sought to present a case that he was an offender in a lesser degree to which he had been found by a Court of competent jurisdiction. In Minister of Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 63 FLR 441, the Court held (Fox, Fisher and Sheppard JJ):

The taking of such a course by the Tribunal has, in my respectful opinion, the effect both of going behind the conviction and setting it at nought. In my opinion it was not open to the respondent to lead evidence for the purpose of showing that he was a principal in the second degree rather than in the first. Certainly it was not open to the Tribunal to treat him as convicted on the basis of that conduct rather than upon the basis of conduct which made him a principal in the first degree. To proceed as it did involved it in an error of law.
I do not believe that such a conclusion is greatly restrictive of the Tribunal's difficult and important function in deportation cases. If the view I have proposed prevails, the Tribunal remains entitled, indeed bound, to examine for itself what was involved in the entirety of the conduct of the applicant before it. This examination will include the receiving of evidence to put the Tribunal in a position to weigh and to make its own assessment of the seriousness of the conduct which has led to the conviction. Nevertheless, I concede that the view I favour may in some cases have an inhibiting effect on the Tribunal. It may also create a degree of difficulty for it because it will need to determine whether particular evidence sheds light on the way conduct on the part of an applicant for review should properly be viewed or whether its real effect, if accepted, would be to go behind the conviction. It will be necessary for the Tribunal to be aware at all times of the purpose for which it receives (or has received) the evidence and for which it uses the evidence. If the evidence in question is in truth evidence which involves the applicant in seeking to go behind the conviction or to have the conviction set at nought, it ought to be put aside; otherwise it will need to be weighed along with all other evidence for the purpose of deciding whether to remit the matter to the Minister for reconsideration in accordance with the Tribunal's recommendation.

169. The Tribunal finds that in the December 2008 convictions, NTTH committed a serious offence, as reflected by the sentences imposed by the Court. Mr Buchhorn submitted that NTTH was asked by others to put the rental agreement for the property in his name as a way of protecting them if, as transpired, the police became aware of the operation. But the Tribunal cannot accept any suggestion that NTTH was a dupe who was only peripherally involved. It was, as the Judge said, sophisticated offending and done with full knowledge that it was illegal.
170. The submissions that were made on NTTH’s behalf about the involvement of Ms Gobbo in his Court appearances will be considered separately later in these reasons.
171. In respect of the 2019 offending, the Tribunal accepts, as the Judge found (GD, p 34) that, while NTTH pleaded guilty to a trafficking offence, he was not part of a drug trafficking syndicate, as four other co-offenders were. The Applicant met another man while undertaking his CCO obligation and decided to make some money by selling him something that might not have been genuine. NTTH knew he was looking for supplies of the illicit drug BD, and the Applicant told him that he could get a supply of this drug. He entered into an agreement, as the Judge said, not actually to supply the drug but to deceive this other man into paying for what he thought was the genuine product. An Albanian friend apparently provided this product, which NTTH described in his evidence as some sort of body wash liquid or soap powder.
172. The recipient complained that the substance provided was not of ‘proper quality’ and, after some exchanges, NTTH met and suggested mixing in some further chemicals with what had already been supplied which would solve the problem. It did not.
173. The Judge could not determine how much NTTH received for supply of this substance but recorded that almost $27,000 was found at NTTH’s house, which was forfeited, and accepted concessions that the bulk of this money came from proceeds of the criminal activity.
174. Although it never was the case that NTTH was actually providing BD, or any other illicit drug, the Judge accepted that ‘offering to sell’ a drug of dependence was sufficient to satisfy the definition of trafficking, where the person receiving the offer believed the product to be a genuine prohibited drug (see R v Peirce [1996] VicRp 64; [1996] 2 VR 215). The plea of guilty was accepted on that basis.
175. The Judge accepted that the actions of the Applicant in this transaction could be likened to dishonesty and deception cases, but took the view that some of the usual considerations applied to drug trafficking should be applied in her sentencing, because NTTH was facilitating an illegal trade, that of supplying a drug of dependence to ultimate consumers.
176. While the Court accepted that NTTH did not intend to provide any drug of dependence, he was reckless as to what he initially provided, and added further to that recklessness by suggesting other chemicals could be added to whatever this bogus substance was, without considering the possible harm that could result.
177. The Judge concluded that this offending was at the lower end of seriousness because it was not, in fact, the drug BD, but not an insignificant level of seriousness. She stated that the sentencing principle of general deterrence, to discourage others from similar offending by showing such offending attracts stern punishment, remains the most important principle, notwithstanding, in Her Honour’s words, that NTTH’s offence was focused on deception and not an intention to actually supply the promised drug (GD, p 47).
178. In respect of the gun found in the dishwasher in NTTH’s garage, the Judge accepted the evidence that it was wrapped up, which did not indicate likely imminent use. Her Honour also accepted that no ammunition was found, and the photographs of the weapon indicated rust. The Judge accepted there was no indication it was intended to be used in a harmful way nor in pursuit of any other offending. A sentence of nine months’ imprisonment, followed by a CCO with judicial monitoring, was imposed.
179. The Tribunal concludes that, regarding the 2018 offending, NTTH was essentially involved in a money-making exercise, rather than actually supplying drugs. However, the Court rightly highlighted the reckless nature of his actions: he was providing a potentially harmful substance for people to ingest or inject, and was reckless as to the potential consequences of that. It was, to that extent, disgraceful conduct.

The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)

180. The Tribunal had before it the report of Mr Patrick Newton, which concluded that NTTH has a ‘low risk’ of re-offending. Mr Newton qualified his conclusions by agreeing that NTTH’s rehabilitation was ‘a work in progress’ but took the view that there were enough positive signs to give him some confidence to make that conclusion.
181. There are some protective factors in place that might contribute to a lower risk. NTTH admitted that abuse of alcohol has played a significant part in his past conduct, and there was significant evidence before the Tribunal of long-standing gastric issues which seem on the medical evidence still to be unresolved. The Tribunal accepts the Applicant’s evidence that his doctors have told him that he cannot drink alcohol anymore because of his stomach problems. It was clear to the Tribunal that Ms XW is a loving and supportive wife, and NTTH’s relationship with her and their daughter, born in early 2015 is a major driver in him not re-offending. However, he has been in a relationship with Ms XW since 2006 and their daughter was born in 2015, and yet the Applicant still offended. I accept that part of his offending was motivated by a wish to establish a better home for his family and by the uncertainty when the house they were renting might have been sold. But these are everyday challenges that many families face, without being a precipitant to criminal activity.
182. I do not accept the Applicant’s evidence that he did not take the two written warnings he received from the Department seriously. On these occasions he instructed, first, a migration agent and, second, a lawyer, to make detailed and comprehensive submissions to the Department on his behalf. He knew that continued illegal activity would jeopardise his ability to hold a visa.
183. Overall, I am inclined to broadly accept the estimation of NTTH as a ‘low risk’ of re-offending. It is, however, a real risk and one that could rise, particularly if he renews association with other criminal associates, or if family financial pressures become too great. My impression is that he is not an habitual criminal and that the two brackets of significant offending of which he has been convicted, in 2008 and 2019, have been essentially driven by financial gain, with the aim of better supporting his family, which of course is no excuse at all, but does provide certain context. I found that the character witnesses who gave evidence were genuine in their desire to support NTTH and, in particular the evidence of NTTH’s friend, Mr XH, their assessment of him as having significant redeeming qualities carried significant weight.
184. The sentencing Judge in 2019 noted that while NTTH was on bail he complied with strict bail conditions, was working where possible, including in painting jobs, which he could obtain and had not been involved in further offending. I note in general from my reading of the documents that NTTH has generally been compliant with Court orders, except for two breaches, one relating to driving when his licence had been suspended owing to the accumulation of demerit points, which led to that being a breach of an order he was then serving.
185. The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa, but not heavily so.

Primary consideration: Family violence committed by the non-citizen (paragraph 8.2)

186. There was no evidence before the Tribunal that the Applicant has committed any offences that would constitute ‘family violence’ as defined in item 1(4) of Part 1 of the Direction, nor that he has been involved in the perpetuation of family violence. This consideration, being not relevant in this case, weighs neutrally.

Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)

187. The Tribunal is required to make a determination regarding the best interests of any relevant minor children who may be affected by the decision. The Tribunal identifies one minor child, the Applicant’s daughter, XD born in 2015 (GD, p 151). There was significant evidence before the Tribunal of the strong relationship between NTTH and his daughter, not only from his wife, Ms XW, but also from two witnesses Mr XH and Ms XC.
188. The Tribunal notes the expert evidence of Mr Kleynhans who, although he has principally been treating Ms XW, has seen XD on two occasions. He was of the view that permanent separation from her father would have a significant detrimental and long-term effect on XD. I note also his remarks in his July 2020 report, particularly at (GD p 109) about the effect on XD of the forced separation of her parents, and the role NTTH plays in his daughter’s life.
189. The Respondent conceded that this consideration weighs in favour of the Applicant but noted he has raised the best interests of his daughter in previous submissions to the Department but has gone on to re-offend.
190. The Tribunal notes the circumstances of Ms XW’s departure from Albania have effectively cut her off from her remaining family there and accepts the findings of the Refugee Review Tribunal in that regard. I note also that there has been judicial acceptance that Ms XW cannot safely return to her country of birth (GD, p 47, paragraph 52). The consequence is that there is no extended family support on the maternal side for XD, and the evidence indicates that there are no other relatives in Australia on either the paternal or maternal side. The strong evidence of the continuing mental health challenges which have faced Ms XW is a significant ingredient in the Tribunal’s addressing of this primary consideration, because there have been occasions, on the written evidence and the evidence of Ms XC, where NTTH has, owing to his wife’s state of health, had to fulfil all the parental responsibilities for periods.
191. The Tribunal finds that this primary consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.

Primary consideration: Expectations of the Australian Community (paragraph 8.4)

192. Paragraphs 8.4(1) and (2) of the Direction state:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because of the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia, of the following kind:
...

193. The Direction then goes on to list specific sorts of conduct, none of which the Tribunal considers may explicitly apply to NTTH’s offending, except for paragraph 8.4.(2)(c) which relates to crimes against vulnerable members of the community. While the Direction gives the example of vulnerable categories as the elderly or disabled, the Tribunal takes the view that persons addicted to drugs are also in a category of vulnerable persons, and the exploitation of their addiction for financial gain is serious conduct.
194. As the Direction says, the expectation of the Australian community is taken to be a norm. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A previous version of the Direction (Direction No. 65) contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia (the Full Court) in FYBR v Minister for Home Affairs [2019] FCAFC 185.
195. It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. Charlesworth J stated at [68]-[74]:

The content of the expectation
It is necessary to give content to the deemed expectation of the Australian community in a way that is capable of being afforded weight as a primary consideration in a particular case. In the particular case, the Australian community will either expect the visa to be refused, or it will not. In light of what is said above, the present enquiry does not concern what the Australian community expects in fact (assuming such expectations could be objectively ascertained), but rather concerns what the government has deemed the community’s expectations to be. The content of the deemed expectation is to be discerned by construing cl. 11.3 itself.
The clause expresses two expectations, the first concerning norms of conduct to be expected of non-citizens, as expressed in the opening sentence:
The Australian community expects non-citizens to obey Australian laws while in Australia.
This statement is a reflection of the rule of law as it applies to citizens and non-citizens alike. It is an expectation that will not have been met in respect of a visa applicant who cannot pass the character test in s 501(6) of the Act and so must, of its nature, weigh against the refusal of a visa in all cases to which the Direction applies.
The second expectation is more difficult to interpret. It is expressed in the second and third sentences of the clause as follows:
Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application of such a person. Visa refusal 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 be granted a visa.
This part of the clause is concerned with the consequences that should befall a non-citizen who has fallen foul of the first expectation. It should be understood as expressing an expectation about the outcome of the exercise of the power conferred by s 501(1) of the Act in respect of the particular person whose circumstances are under consideration.
Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker’s own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl. 11.3 of the Direction. The clause implicitly recognises that the decision-maker’s assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.
I have accepted the Minister’s submission that cl. 11.3 is intended to give effect to the principle that the Minister may make a statement of the government’s views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the ‘government’s view’ about community expectations in the particular case, to ‘have due regard’ to that view and to ‘generally’ afford that view more weight than other non-primary considerations in accordance with cl. 8(4). The phrase ‘may be appropriate’ does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl. 11.3) with the decision-maker’s own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl. 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to ‘other considerations’ in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl. 11.3 all countervailing factors bearing on the ultimate decision would render cl. 8(4) of the Direction unworkable...

197. In a separate judgment, Stewart J stated, at [100]-[101]:

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

(1) non-citizens will obey Australian laws when in Australia;

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

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

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

198. His Honour said (at [102]) that ‘...the character assessment, even through the prism of community expectations, may not be decisively against the applicant...’ Therefore, the decision-maker must assess what is ‘appropriate’ in the circumstances. On 24 April 2020, the High Court of Australia refused special leave to appeal the Full Court decision in FYBR.
199. It is the Tribunal’s view that the expectations of the Australian community would incline against NTTH because he has offended and served a significant custodial sentence in 2008, been warned about his immigration status and allowed to stay in Australia, and then gone on to re-offend in 2018. That expectation may be tempered slightly by the notional informed member of the Australian community with knowledge of Ms XW’s mental health and the circumstances of her leaving Albania, and the effect the deportation of NTTH would have on her and their daughter.
200. The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.

OTHER CONSIDERATIONS

International non-refoulement obligations (paragraph 9.1)

201. The Direction sets out that a non-refoulement obligation is an obligation on Australia not to forcibly return, deport or expel a person to a place where they would be at risk of a specific type of harm. Australia has obligations under the 1951 Convention relating to the Status of Refugees and other treaties, namely the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.
202. The Direction states, at paragraph 9.1(7) that where a person makes a claim which may give rise to international non-refoulement obligations and the person is able to make an application for a protection visa, those claims will be ‘conclusively assessed’ before consideration is given to any character or security concerns associated with the non-citizen. That obligation applying to delegates of the Respondent is also stipulated in Direction No. 75, made under section 499 of the Act. Although NTTH has historically been refused a protection visa, the Respondent conceded that, as he has left the migration zone since that historical refusal, he is not prohibited by section 48A of the Act from lodging a fresh protection visa application.
203. Nevertheless, notwithstanding that, the Tribunal has an obligation to properly consider any claims made at this stage. The Applicant asserts that he will face harm as a result of ‘blood feuds’ in Albania in the light of previously accepted protection claims made by Ms XW in relation to her formerly being promised to ZD. Mr Buchhorn submitted that there is a real risk of NTTH being seriously harmed if he were to be returned to Albania, a country where his wife was the victim of persecution (see the Applicant’s Statement of Facts, Issues and Contentions (‘ASFIC’), p 8).
204. The ASFIC also referred to a 2016 report by the European Asylum Support Office which said:

The blood-feud phenomenon in Albania dates back centuries to the customary law Kanun of Lek Dukagjuin, a code regulating communal life as well as private matters. During the reign of Enver Hoxha, the blood feud was outlawed and harshly punished. However, the collapse of the regime in early 1990s, combined with the absence of a functioning state, especially in the remote northern areas, left space for the revival of revenge killings.

205. In addition, the ASFIC quotes a 2004 report of the International Centre for Minority Studies and Intercultural Relations, which relevantly stated:

According to the Code, if a man is deeply affronted, his family has the right to kill the person who has insulted him. However, by doing this, the family will become a target for revenge on the part of the victim’s family. The victim’s closest male relative is obliged to kill the murderer of his family member. The pattern of reprisal killings thus formed has been passed on for generations of families.

206. In response, the Respondent referred to a February 2020 Country Police and Information Note prepared by the Independent Advisory Group on Country Information (UK) which describes blood feuds as a lengthy conflict between families involving a cycle of retaliatory killings, and submitted this does not apply to Ms XW, noting the passage of 20 years and the absence of retaliatory killings.
207. The Tribunal accepts that there is some evidence of continuation of killings based on Kanuni Law in the northern parts of Albania, and notes Mr Cunynghame’s acceptance during the hearing that one of the pockets in the northern part of the country where some people still have some regard for this ancient code is where NTTH comes from.
208. In his oral evidence, NTTH said he would be hiding from ZD if he returned to Albania and submitted that ‘ZD and his family’ would torture him. He conceded he had never met ZD nor spoken to him, a fact that was confirmed in her evidence by Ms XW. NTTH agreed that his parents still live in the village where he was born and when asked, if ZD would be interested in finding him why ZD had not made some sort of contact with them, he said “I’m not sure about that.” He then said that his parents had told him that ZD had been asking about him because they had told him “five or seven years ago.”
209. However, when pressed on whether his parents had told him how they knew ZD was looking for him or whether ZD had asked them directly, NTTH said “he [that is, ZD] sent a message to Ms XW’s family”. NTTH said in his statement that ZD’s family was influential, but when asked how he was influential, NTTH said “You can ask my wife directly. I know through my wife.”
210. When Ms XW herself gave evidence, she said she last discussed ZD with her sister, who lives in the USA, six years ago. The most telling response that Ms XW gave was in response to the question about her understanding of ZD’s knowledge of NTTH, she said: “He might have a lot of information. That we are married together and have a daughter. My sister said if NTTH goes back to Albania, you never know what is going to happen to him.”
211. What I glean from this is, noting that ZD and NTTH come from different villages, is that the concerns are based on surmise, and little more. I cannot conclude that the claims made rise to the level of a fear of real harm. There was no evidence that NTTH’s parents or his brother had had any approach from ZD or anyone acting on his behalf, in the last 20 years, and Ms XW’s conversations with her sister, who lives abroad and who she said does not have a good relationship with their parents but does have some contact, centres on speculation that ‘you never know’ what might happen. I also do not understand why it would be that NTTH would have to go back to his home village, if he was returned to Albania. He said that when he travelled back to Europe in 2012, he stayed in Montenegro, over the border from Albania, and his parents travelled to visit him there. He told the Tribunal he stayed in a house that he had occupied in the past. There would seem to me to be no reason why NTTH could not live elsewhere. When asked directly whether, for instance, he could live and find work in Tirana, the capital, NTTH’s only response was that he had never been there.
212. I note that NTTH confirmed he had instructed his then lawyer Mr Bayley in 2016 to make written submissions to the Department which inter alia conceded the Applicant was not owed non-refoulement obligations (SGD, p 192). There was no evidence before me that the factual circumstances that might give rise to such obligations has changed in the meantime. I am not satisfied that the Applicant’s evidence, nor the written submissions, rise to the level that would invoke Australia’s international obligations. In saying this, I note that in the event NTTH applied for a protection visa, he would have a further opportunity, as set out in paragraph 9.1(6) of the Direction, to articulate such claims and they would be considered in greater detail in such an assessment.
213. I find that this consideration weighs neutrally.

Extent of impediments if removed (paragraph 9.2)

214. The Direction requires the Tribunal to consider the extent of any impediments NTTH may face if removed from Australia to Albania, in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country, taking into account the Applicant’s age and health, any substantial language or cultural barriers and any social, medical and economic support available to him.
215. Submissions were made on behalf of the Applicant about the state of the public health system in Albania. The Tribunal made clear in the hearing that the yardstick the Direction requires me to use is what is generally available to other Albanian citizens, not what is available in Australia, as a comparator.
216. NTTH speaks Albanian and is familiar with the culture of the country. His parents live there, although it is accepted that they are elderly and on state pensions and would therefore not be able to offer any financial assistance to their son if he is returned. NTTH has one other sibling in Albania, a brother who lives in the same village as his parents, but he said he is not close to him. There was no evidence before the Tribunal that the brother could offer assistance, or that he could not.
217. The Tribunal accepts the medical evidence before it (GD, pp 227-232) that NTTH has suffered from periodic but persistent intestinal problems, and that he has been prescribed medication in relation to this. NTTH said that this medication would not be available to him through the state hospital system in Albania but would be available through private hospitals or clinics, but at a cost that he would not be able to afford. The Applicant’s counsel referred to a document produced by the Centre for Administrative Innovation in the Euro-Mediterranean Region relating to welfare in Albania which states that access to state health care in Albania is based on both citizenship and payment of insurance contributions, and submitted that as NTTH has lived in Australia for the last 16 years, he has not made any insurance contributions to the Albanian Government which might affect his access to medical care and pharmaceuticals.
218. The Tribunal accepts that, while NTTH is otherwise healthy and able to work, his gastric condition has flared and presented some debilitation, and this would be a particular impediment to him.
219. Counsel for the Applicant suggested that eligibility for the Ndihma Ekonomike (‘NE’), which is Albania’s main social assistance scheme, would be affected because “a household will be denied benefits if any one of the following filters applies: Households who have a member who...resides out of the country”.
220. I am not satisfied that this is conclusive evidence that NTTH would be denied access to the NE because it is not clear what constitutes a ‘household’. However, I am satisfied that this consideration weighs slightly in favour of revoking the mandatory cancellation of the visa because I have reservations that NTTH would be able to have easy access to medication for a medical condition that is specific to him, and of which there is a history of medical evidence, even if the settled diagnosis has waxed and waned.

Impact on victims (paragraph 9.3)

221. The Direction requires the Tribunal to consider the impact of the cancellation of the visa on members of the Australian community, including victims of NTTH’s criminal behaviour, where that information is available.
222. The Tribunal interprets this to mean, first, that a victim of a non-citizen’s offending must be aware of the immigration action taken by the Minister or delegate and, second, that they must have expressed a view that is before the decision-maker. There was no such evidence before me. Consequently, this consideration weighs neutrally in this assessment.

Links to the Australian community (paragraph 9.4)

The strength, nature and duration of ties to Australia (paragraph 9.4.1)

223. The Tribunal must consider the impact of the decision on NTTH’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia indefinitely.
224. I must have regard to how long NTTH has resided in Australia, giving less weight where he offended soon after arriving in Australia and more weight to time he has spent contributing positively to Australia.
225. Both Ms XW, the Applicant’s wife, and their daughter, XD, are Australian citizens. There was substantial written evidence before the Tribunal of the impact on both if NTTH was repatriated to Albania. Added to this was the oral evidence of Ms XW, Mr Kleynhans and, to a lesser extent, Ms XC. Two factors are, in the Tribunal’s estimation, particularly significant in weighing this consideration. The first of these is the traumatic circumstances of Ms XW’s departure from Albania and arrival in Australia. Those circumstances led to a decision that Ms XW warranted Australia’s treaty-related protection. The relevant factors to me still adhere in relation to the Applicant’s wife, and it would seem to me that, even though Ms XW is now an Australian citizen, there would be significant reasons for her not to return at all to Albania.
226. Consequently, a decision not to revoke the mandatory cancellation of NTTH’s visa would likely lead, if not to a permanent separation, to a long-lasting separation between NTTH, and his Australian citizen wife and daughter. It may be, if he is repatriated, that they would in the future be able to reunite in a third country, but that would be speculation on the Tribunal’s part because there was no evidence about that.
227. The second factor that is significant is the weight I give to the expert evidence of Mr Kleynhans. That weight is substantial. He has been the treating psychologist to Ms XW for more than a decade and has a comprehensive knowledge of what would seem to be her entrenched Major Depressive Disorder. He was clear that a factor in her mental condition is suicidal ideation and that his opinion was that Ms XW’s prognosis would be ‘poor’ if NTTH was deported.
228. Mr XK gave evidence of some positive voluntary contribution that NTTH had made to the Albanian Catholic community in Australia, albeit he noted they only had periodic activities. There was a written submission from a former – and prospective – employer of NTTH who referred to his past work as a painter and decorator and offered work for the future.
229. No doubt NTTH’s circle of friends in Australia would be disappointed if he was repatriated. That is unfortunately a price of a non-citizen attaining a substantial criminal record. I take into account that NTTH’s offending has not been consistent, but has been sporadic, but in respect of the clause in the Direction requiring me to take into account whether the offending began soon after arrival in Australia, that is axiomatic in NTTH’s case: he entered this country under a false name, using a passport to which he was not entitled, and this very action resulted in a subsequent conviction.

Impact on Australian business interests (paragraph 9.4.2)

230. Mr Buchhorn urged the Tribunal to take into account that NTTH has worked as a painter and decorator and that these are trades that are currently in short supply in Australia. The Tribunal notes that this part of the Direction notes that, in assessing impact on Australian business interests, an employment link would generally only be given weight where the decision under review would ‘significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
231. While the Tribunal accepts that skilled tradesmen are sought after, I do not conclude that there was enough evidence before me that whether NTTH stays in Australia or not rises to the level contemplated in this paragraph. I do not interpret the wording of paragraph 9.4.2 to preclude an assessment of the effect on business of a non-citizen departing Australia where that does not compromise a major project or important service, but this is the general prism to which decision-makers are directed. On the evidence before me, I find that this consideration is not relevant and therefore weighs neutrally.
232. However, on balance, because of the medical evidence before me regarding Ms XW, I have concluded that this consideration weighs in favour of revoking the mandatory cancellation of the visa, and very heavily so.

Another claim raised

Previous legal representation by Ms Nicola Gobbo

233. Counsel for the Applicant raised in submissions the fact that NTTH was represented in 2008 by a barrister, Ms Nicola Gobbo, during a time which they submitted ‘it is now known that she [i.e. Ms Gobbo] was working as a registered informer for Victoria Police’, and referred to a conclusion by the Victorian Royal Commission into the Management of Police Informants (‘the McMurdo Royal Commission’) that, in the period between 2005 and 2009 Ms Gobbo had extensive contacts with her handlers at Victoria Police – see Volume 1 - Final Report and Recommendations of the McMurdo Royal Commission (at p 109).
234. The Applicant submitted (ASFIC, p 12):

We acknowledge that it is not generally the Tribunal’s role to review the conduct of criminal proceedings in a revocation request. However, the current situation is unique and state and federal prosecutors have been reviewing similar cases following the Royal Commission’s report. [NTTH’s] 2008 conviction forms a large part of [NTTH’s] criminal history and occurred during this period of time. We submit that, [NTTH’s] matter may not have been represented by competent counsel and a different sentence may have been imposed had he received effective representation.

235. In response, the Respondent submitted that the seriousness of NTTH’s offending is not diminished by the fact that he was represented by Ms Gobbo. The Respondent said that the Federal Court of Australia has consistently held that the Tribunal cannot go behind a conviction and the sentencing remarks, reminding the Tribunal of the decision in SRT (referred to more extensively above). The Respondent said that there was no evidence that the Applicant’s relationship with Ms Gobbo resulted in a miscarriage of justice and contended that the argument by the Applicant appears to be circumstantial, based on Ms Gobbo’s broader profile (RSFIC, p 16). The Respondent drew the Tribunal’s attention to the sentencing remarks of the Judge in NTTH’s 2019 proceedings (GD, p 59):

I take into account the hardship you have suffered and the deprived background as set out by Ms Gobbo in her eloquent plea.

Consideration

236. Mr Buchhorn submitted that Ms Gobbo did not raise with the Court NTTH’s mental or physical health or his drug addiction. He based this submission on the facts that these factors were not explicitly referred to in the comments passed on sentence. As the Tribunal stated in the hearing, there was no transcript of the submissions made on sentence by either counsel for NTTH or the Crown and I cannot be satisfied that, for the sole reason that His Honour did not refer to particular matters, they were not raised.
237. When asked directly by the Tribunal whether he was making a submission that there had been a miscarriage of justice in relation to the submissions on sentencing, and the sentencing, of NTTH in 2008, Mr Buchhorn’s response was: “Not squarely.”
238. The Tribunal noted that NTTH had admitted, not only by his guilty pleas to all of the charges in 2008, but in relation to using a false name to rent the premises and water the cannabis plants in response to direct questions I put in this hearing, that he had, in fact, done those things. The subsequent revelations by the McMurdo Royal Commission as to the unprofessional conduct of Ms Gobbo at the time have not been linked to NTTH’s sentencing to my satisfaction. To the contrary, His Honour recited aspects of NTTH’s background and family circumstances made to him in the submissions on sentence and referred to those submissions made on NTTH’s behalf by Ms Gobbo as ‘eloquent’. NTTH said that his suspicions about Ms Gobbo had been aroused by what he had seen on the news. Depending on their foundation and any proof, those suspicions could hypothetically gain some traction if there had been a hotly contested criminal trial. Even if that had been the case, I believe this allegation would not be a matter within the proper bounds for this Tribunal to examine in undertaking an exercise of administrative review. But even so, that is not the fact in this case. The fact is that NTTH entered pleas of guilty on all the charges, including the summary offences he, now, raised objections about at this hearing.
239. The cancellation of NTTH’s visa occurred because the Minister was satisfied that the Applicant had a substantial criminal record (i.e. had been sentenced to a term or terms of imprisonment of 12 months) and was at the time of cancellation serving a sentence of full-time imprisonment. That cancellation operated mandatorily under section 501(3A) of the Act by virtue of those facts. The exercise the Tribunal is now engaged in is to consider whether there is another reason under section 501CA(4)(b)(ii) for that cancellation decision to be revoked. (See, relevantly, the comments of Snaden J in DFTD v Minister for Home Affairs [2020] FCA 859, at [38].).
240. It is beyond the competence of the Tribunal to undertake an investigative exercise into whether a barrister was diligent in representing a client in a criminal court. NTTH said in his evidence that he had received what he described as a letter from the Victorian Government relating to his Court matter. He was unsure whether his wife had referred that to a lawyer. If he has evidence of impropriety in his matter by his barrister or solicitor, on his own evidence he has other administrative and perhaps legal avenues available to him. However, as I said directly during the hearing, advice that a lawyer might give their client about a likely sentence is, in the absence of any prior indication from the bench, simply an educated guess. The sentence itself is not known until the presiding Judge pronounces it.
241. In addition, pointing away from any conclusion that there is something which undermines the conviction on which the ‘substantial criminal record’ was found is that what I might call the triggering sentence of more than 12 months (i.e. three years and six months), imposed in 2008, was imposed after guilty pleas. As mentioned above, the High Court has made clear in Maxwell what a guilty plea means. There is very narrow scope to upset such a plea of guilty, and the authorities in the past have done so only in very rare circumstances such as a plea being mistakenly entered, or a lawyer acting against instructions from a client, or an accused person entering a plea by mistake. None of these apply to NTTH.
242. The Tribunal rejects this additional claim as otiose.

CONCLUSION

243. The Tribunal has considered the submissions made in writing and orally at the hearing, and the evidence of the Applicant and the witnesses he called. In terms of the Direction, the Tribunal has found that the primary consideration relating to protection of the Australian community weighs against revoking the mandatory cancellation of the visa. The primary consideration relating to family violence is not relevant in this matter. The primary consideration relating to the best interests of the affected minor child weighs heavily in favour of revocation. The primary consideration relating to expectations of the Australian community weighs against the Applicant. In terms of the other considerations, Australia’s international non-refoulement obligations have been found not to have been engaged. The extent of impediments if removed weighs slightly in favour of NTTH. The impact on victims has been found not relevant. The consideration relating to links to the Australian community has been found to weigh in favour of revocation, and heavily so. The additional claim made by counsel for the Applicant has been found not to be relevant to the task before the Tribunal.
244. Weighing all of the considerations cumulatively, the Tribunal finds that the primary consideration relating to the best interests of NTTH’s daughter and the other consideration relating to his links to the Australian community in respect of the effect on his wife of the cancellation of the visa are determinative in this matter and fulfil the requirement that the discretion is enlivened and that there is another reason to revoke the mandatory cancellation of the visa under section 501CA(4)(b)(ii) of the Act.
245. The Tribunal has some confidence that NTTH will not re-offend, but not complete confidence. He faces a CCO which, vitally in terms of ameliorating recidivism, requires him to appear regularly before a Judge of the County Court who will consider reports on his adherence to its conditions, and who has the power to order him back into penal custody if he breaches the order. That is one incentive not to re-offend. A greater incentive is his supportive wife and daughter. NTTH has a very chequered migration history in this country and has been given the benefit of the doubt before. It is not without a calculated assessment that the Tribunal makes this decision, but it should be abundantly clear to the Applicant that any further breaches of the law, regardless of the nature of that breach, would be likely to see him lose the right to stay in Australia permanently.

DECISION

246. The Tribunal sets aside the decision of the delegate of the Respondent dated 5 February 2021. In its place, under section 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal substitutes a decision that the mandatory cancellation of the Applicant’s Class BS Subclass 801 Partner visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.

I certify that the preceding 246 (two hundred and forty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 5 May 2021

Dates of hearing:	22, 23 and 26 April 2021
Counsel for the Applicant:	Mr Greg Buchhorn
Solicitors for the Applicant:	Hammond Lawyers
Advocate for the Respondent:	Mr Adam Cunynghame
Solicitors for the Respondent:	Sparke Helmore Lawyers