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

[2022] AATA 4040

Au and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 4040 (28 November 2022)

Division:GENERAL DIVISION

File Number:          2020/8313

Re:Salafai Tauapai Au

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Andrew Nikolic, AM CSC

Date of decision:               28 November 2022

Place:Sydney

The Tribunal affirms the decision under review.

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

Senior Member Andrew Nikolic AM CSC

CATCHWORDS        
MIGRATION

– citizen of New Zealand – mandatory visa cancellation – Class TY Subclass 444 Special Category (Temporary) visa – non-revocation of mandatory cancellation decision – substantial criminal record – failure to pass the character test – Ministerial Direction No. 90 applied – reviewable decision affirmed

LEGISLATION 

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)

CASES

Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 372
Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 124
Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Citizenship, Migration, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67
Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2020] HCATrans 056
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] 276 FCR 516

SECONDARY MATERIALS

Hare Psychopathy Checklist – Revised, 2nd Edition (PCL-R), and Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3)

Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022) < FOR DECISION

Senior Member A. Nikolic AM CSC

28 November 2022

INTRODUCTION

1. The Applicant seeks review of a decision made by the Respondent, under s 501(CA)(4) of the Migration Act 1958 (Cth) (the Act), not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa).

2. The hearing was held in person at the Tribunal’s Sydney Registry on 16 and 17 November 2022. The Applicant was represented by Mr Fardin Nikjoo, a solicitor from Nikjoo Lawyers. The Minister was represented by Ms Charlotte Saunders, a solicitor from Minter Ellison.

3. For the following reasons, the Tribunal affirms the reviewable decision.

   FACTS

4. The Applicant is a 39-year-old New Zealand citizen of Samoan ethnicity.[1] He is the second youngest of five children and was educated in New Zealand until the age of 15.[2] The Applicant’s parents, three siblings, and other family members and friends still reside in New Zealand.[3] Another of his sisters and her five children reside in Queensland.[4]

   [1] Exhibit R1, 67.

   [2] Exhibit A1, 1.

   [3] Ibid 75.

   [4] Ibid 94.

5. The Applicant initially arrived in Australia for a two-week visit in 1996, but from 21 March 1999 stayed for increasingly longer periods.[5] He has travelled to and from Australia on ten occasions. The Applicant undertook some limited schooling in Australia, and was subsequently employed as a painter, concreter, meat boner, fencer, and in other roles.[6]

   [5] Ibid 39-40.

   [6] Ibid 77.

6. The Applicant is currently single but is the biological father of four children from two different relationships in Australia.[7] Three children are from a relationship that ended approximately six or seven years ago and are currently between 10 and 17 years of age. [8] He also has a four-year-old child from a subsequent relationship.

   [7] Ibid 101-104.

   [8] Ibid 94.

7. The Applicant has an extensive criminal history in Australia.[9] On 12 May 2020, his visa was mandatorily cancelled on character grounds following convictions for six offences.[10] This included two counts of unlawful use of a motor vehicle, for which he was sentenced to 12 months’ imprisonment on each count.  

   [9] Ibid 35-38.

   [10] Ibid 56-61.

8. On 29 May 2020, in accordance with an invitation extended to him, the Applicant made representations about why the cancellation decision should be revoked.[11]

   [11] Ibid 63-110.

9. On 8 December 2020, the Respondent decided not to revoke the cancellation decision (non-revocation decision).[12]

   [12] Ibid 13-38.

10. On 16 December 2020, the Applicant sought review of the non-revocation decision.[13]

    [13] Ibid 7.

11. On 2 March 2021, the Tribunal, differently constituted, affirmed the non-revocation decision.[14] 

    [14] Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 372.

12. On 14 October 2021, the Applicant’s judicial review application was dismissed.[15]

    [15] Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 124 (Cheeseman J).

13. On 2 August 2022, the Applicant’s appeal to the Full Court of the Federal Court of Australia was allowed.[16] Their Honours ordered that the Tribunal must determine the application according to law within 84 days (by 25 October 2022).

    [16] Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125, (Perry, Derrington, and O’Sullivan JJ).

    PROCEDURAL HISTORY

14. This application has an unusual procedural history. The Full Court’s order to determine the application by 25 October 2022, initially meant the Tribunal could not grant a four-to-six-week adjournment request by the Applicant. Remitted matters are not usually subject to an expedited timeframe in the way that first instance applications are under s 500(6L) of the Act. By the time a remitted matter is returned to the Tribunal and reconstituted, this further limits the time available to prepare for and conduct a hearing. These matters, which have already been through a Tribunal and judicial review process, are routinely more complex.

15. A further complicating factor was the unexpected news on 29 September 2022 that the Applicant had been relocated from Villawood Immigration Detention Centre in Sydney to a Detention Centre in Western Australia. This occurred only a day after the Applicant secured legal representation in Sydney, a day prior to a Telephone Directions Hearing (TDH) on 30 September 2022, and within a fortnight of the in-person hearing. An in-person hearing had been ordered, without objection of the parties, because the Applicant and legal representatives were in Sydney. The Villawood Detention Services Manager informed the Tribunal on 6 September 2022 that arrangements for an in-person hearing were being made. The Tribunal was also informed on 28 September by Ms Saunders’ office that the Applicant’s appearance by telephone at the 30 September 2022 TDH had been organised with Villawood Immigration Detention Centre. No application was made prior to the Applicant’s relocation interstate to vary the Direction for an in-person hearing.

16. After seeking instructions, Ms Saunders advised that the Applicant’s interstate relocation was part of a capacity-enhancing measure in the immigration detention network. Given the imminence of the Applicant’s scheduled hearing, however, it remains unclear why he was considered a good option for relocation interstate.

17. Following the TDH on 30 September 2022, Ms Saunders advised the Tribunal she had received instructions the Applicant would be returned to Sydney. She also advised that agreement had been reached by the parties to jointly ask the Federal Court to remove the requirement for the matter to be determined by 25 October 2022. This was subsequently approved and enabled the Tribunal to grant an adjournment requested by the Applicant and re-schedule the hearing to 16 November 2022. The Tribunal is satisfied that, with these revised arrangements, the Applicant had a sufficient opportunity to prepare for the hearing.

    LEGISLATIVE FRAMEWORK

18. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction in this matter.

19. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.

20. The ‘character test’ is defined in s 501(6) of the Act, and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

21. Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).

22. Section 501CA(4) of the Act confers a discretionary power upon the Minister to revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or there is another reason why the original decision should be revoked.

    ISSUE FOR DETERMINATION

23. Failure of the character test arises as a matter of law.[17] The Applicant does not pass the character test because of his criminal convictions on 9 April 2020 and imposition of a prison sentence of 12 months or more.[18] Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. It therefore remains to be determined whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for revocation.[19] The task of determining ‘another reason’ was elaborated upon by the Full Court in Bettencourt.[20] Their Honours reflected favourably on the approach taken in Viane[21] and summarised the following principles at [27]:

    (1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.

    (2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.

    (3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.

    (4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.

    (5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.

    (6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.

    [17] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666, [63].

    [18] Sections 501(6)(a) and 501(7)(c) of the Act.

    [19] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).

    [20] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172.

    [21] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).

24. More recently, in Plaintiff M1/2021,[22] the plurality of the High Court stated the following about how representations made under s 501CA(4) of the Act should be dealt with:

    22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

    23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration.  But the decision-maker cannot ignore the representations.  The question remains how the representations are to be considered.

    24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them.  From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.  The weight to be afforded to the representations is a matter for the decision-maker.  And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder (44).

    25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness.  What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations.  The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations.  The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them (48).

    (Citations omitted).

    [22] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 (Plaintiff M1/2021), [22]-[27], (Kiefel CJ, Keane, Gordon and Steward JJ), [22]-[25].

    Ministerial Direction 90

25. In making its decision, the Tribunal must comply with ministerial guidance under s 499(1) of the Act, which is known as Ministerial Direction 90 (“the Direction”).[23] The Direction contains considerations guiding the exercise of powers under the Act.[24]

    [23] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].

    [24] Matthews v Minister for Home Affairs [2020] FCAFC 146, [45]; BOE21 v Minister for Citizenship, Migration, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22].

26. The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

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

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

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a 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 non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

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

27. Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.

28. Clause 8 of the Direction identifies as primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)Whether the conduct engaged in constituted family violence;

    (c)The best interests of minor children in Australia;

    (d)Expectations of the Australian community.

1. Clause 9 of the Direction sets out a non-exhaustive list of other considerations:

   (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.

2. Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’

3. Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’ This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent weight or greater weight than a primary consideration.[25]

   [25] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).

4. Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ The weighing process, however, is left to individual decision-makers.[26]

   EVIDENCE

   [26] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].

   Documentary evidence

5. The following documents were tendered into evidence without objection:

   (a)Respondent’s consolidated remittal bundle numbering 528 pages;[27]

   (b)Respondent’s supplementary documents numbering 12 pages;[28]

   (c)Further supplementary documents numbering 75 pages;[29]

   (d)Applicant’s undated statement lodged on 10 November 2022;[30]

   (e)Emails from the Applicant’s sister dated 23 October 2022 and 11 November 2022;[31]

   (f)Email from the Applicant’s cousin dated 23 October 2022;[32] and

   (g)Email from another of the Applicant’s cousins dated 24 October 2022.[33]

   [27] Exhibit R1.

   [28] Exhibit R2.

   [29] Exhibit R3.

   [30] Exhibit A1.

   [31] Exhibit A2.

   [32] Exhibit A3.

   [33] Exhibit A4.

   Applicant’s evidence

6. The Applicant adopted his statement lodged on 10 November 2022 as true and correct. The Tribunal has also considered his previous documentary evidence and oral testimony at the first hearing.[34] The Applicant’s evidence occupied almost the entire first day of the hearing and is summarised as follows.

   [34] Exhibit R3.

   Life in Australia

7. The Applicant said his early life in Australia revolved around meeting his first partner in 2002 or 2003, who will be referred to as “Partner 1”. The Applicant had three children with Partner 1, but their relationship became increasingly fractious and he said it was ‘on and off’ from about 2008. The relationship ended permanently in or about 2015 and the Applicant thinks Partner 1 may be in a new relationship.

8. The Applicant spoke about various work roles, including running a painting company with his father for 12 years. He said drug use impacted his ability to run the company properly, causing it to ‘fall apart’. He and his father subsequently had a ‘falling out’, after which his father returned to New Zealand. They have had little contact since. The Applicant referred to several other jobs but said he had not held one for ‘a long time’, which he estimated was five years ago. During the intervening period he has relied on Centrelink benefits.

9. The Applicant said he is motivated to return to work, has no physical or other conditions preventing this, and is ‘confident of getting a job quickly’. He aspires to return to painting, in which he has a Certificate III. He also holds a Certificate III in Business, safety qualifications for work in the construction industry, and work experience as a concreter, boner, salesman, and in other roles.

10. When asked about the possibility of using his skills and experience to find work in New Zealand, the Applicant said he would likely become depressed if returned, which would inhibit his employment prospects. He felt this may cause him to associate with negative peers, relapse into drug use, and reoffend.

    Offending

11. When asked by Mr Nikjoo why he had previously gotten ‘in trouble’, the Applicant said it was because the relationship with Partner 1 broke down. He turned to illicit drugs, predominantly crystal methamphetamine, or ‘ice’, which resulted in loss of employment, periods of homelessness, and an inability to see his children. He enjoyed the support of his sister in Australia at times, including with accommodation and practical support. The Applicant agreed, however, that some of his offending since 2003 had occurred outside of the context of relationship breakdowns and denial of access to his children.

12. When asked about the claim that he had ‘stayed out of trouble for a number of years’[35] the Applicant thought this was in 2003 or 2004 and said he ‘always tried to be on the right path’. He agreed, however, that despite periods where no convictions are recorded against him, including between 2003 - 2008, 2009 - 2014, and 2016 - 2019, he consistently reoffended. The Applicant was also asked about claims that he was imprisoned for ‘minor’ offences in 2019,[36] and only accepted responsibility for his ‘actions and behaviours over the past 2-3 years’. It was put to him this appeared to minimise the seriousness of his conduct over almost two decades. He said that he should have expressed himself differently.

    [35] Ibid 157.

    [36] Ibid 158.

13. The Applicant agreed his crimes traversed multiple categories, including drug possession, dangerous driving, conditional liberty, and dishonesty offences. He also agreed there was repeat offending and multiple offences committed while he was on conditional liberty for earlier crimes. The Applicant said his 2019 convictions resulted from a time in his life contextualised by ‘heavy drug use and not seeking the right help’. At times he also had nowhere to live, resumed using ice, and reoffended. 

14. The Applicant agreed that aspects of his offending are very serious, including unsafe vehicle use: ‘I was lucky not to have hit another motorist [and] was very dangerous to the community’. He accepted that several other people, including himself, were injured because of one driving offence, and that someone could be killed if he again tried to evade police in a car or drove at high speed in a suburban area. The Applicant said he will not repeat this conduct because he no longer has a licence or access to a vehicle and intends using public transport. When challenged that he previously stole vehicles and drove repeatedly without holding a valid licence, the Applicant insisted he would not do so again.

    Rehabilitation

15. During cross-examination the Applicant initially stood by past claims that he was ‘completely free from drugs’ since his most recent imprisonment.[37] When referred by Ms Saunders to evidence that he returned positive drug tests in custodial settings, the Applicant insisted his past claims were true because his drug use was only in detention rather than in prison. When challenged that IHMS staff recorded his claims about using ice, heroin, and other illicit substances in both prison and immigration detention,[38] the Applicant insisted he only used in detention. He explained that the reference to heroin may have been because he mistakenly thought suboxone ‘is heroin’, but he did not intend to convey heroin use in custody. The Applicant said he used drugs in detention to treat depression but had been abstinent ‘for a fair while now’, which he estimated was eight months.

    [37] Ibid 161.

    [38] Ibid 429.

16. The Applicant agreed he pleaded guilty to and was convicted of possessing dangerous drugs in immigration detention. When asked about the contradiction with his most recent statement that he ‘stayed away from drugs in detention’ the Applicant accepted this was untrue and attributed the erroneous claim to tiredness. When asked why he continued to use drugs while his ability to remain in Australia was under active review, the Applicant stated: ‘Because I haven’t taken the right steps to help myself’. It was put to the Applicant his current abstinence claims could not be trusted, to which he responded: ‘I’m not going to put myself in that situation again’.

17. The Applicant agreed he returned a positive urine test for Buprenorphine in December 2020,[39] but said that other positive drug tests for amphetamines and cannabinoids were inaccurate.[40]  He opined these may have resulted from him ‘being in the vicinity of people’ using these drugs, including through passive smoking of cannabis. When asked how he could have returned a positive result for amphetamines used by others, the Applicant responded: ‘I’m not sure’. The Applicant explained there were sometimes up to eight people in a room using drugs, and it was hard to resist because of ‘peer pressure’.

    [39] Exhibit R3, 61.

    [40] Ibid 62-63.

18. The Applicant said he tried to access rehabilitative courses in custody but was ‘unsuccessful’. He ‘lost hope’ and ceased rehabilitative efforts after the Tribunal and Federal Court initially affirmed the non-revocation of his visa. Following the Full Court’s decision to give him another opportunity to put his case, however, he decided to ‘reach out to other rehab providers’ and his family. He intends taking ‘the right measures to do it properly this time’. The Applicant said he consulted IHMS medical staff about drug and alcohol rehabilitation but claimed they only suggested Opioid Substitution Therapy (‘OST’) through the Methadone Program. He rejected this, claiming it is ‘harmful and causes drowsiness’. When referred by Ms Saunders to a 2020 letter he submitted from the Lives Lived Well Program,[41] which included reference to ‘virtual’ rehabilitative programs, the Applicant agreed he did not pursue this, claiming he does not ‘do well in groups’.

    [41] Exhibit R1, 145-146.

19. The Applicant said support was available upon release from his sister, uncles, and cousins in Australia. He agreed with Ms Saunders, however, that his sister would only support him if he remained drug free. When asked if his sister was aware of his illicit drug use in immigration detention, the Applicant responded: ‘Yes – I’m pretty sure’. As disclosed by his sister’s later oral evidence, the Applicant was mistaken about this.

20. The Applicant said his research disclosed that private residential courses could cost up to $40,000, but more reasonably priced options were available with non-profit or government-funded organisations. He claimed one organisation put him on a waiting list, but a place could not be confirmed until his visa issue was resolved. The Applicant said he undertook ‘online courses’, which were yet to be completed, but provided no corroboration. He claimed the enquiries he made about rehabilitative opportunities would put him on the right path to meaningful abstinence from drugs if released.

21. The Applicant was asked about the claim he would ‘fall straight back into drugs again’ and likely reoffend if returned to New Zealand, which suggested the motivation for his abstinence intentions was uncertain. He said his ‘mindset’ would be more positive in Australia because his ‘kids are here’ and the chance of resuming some sort of parental role was at least possible. Return to New Zealand would again cause him to ‘lose hope’ and relapse into drug use.

    Recidivism risk

22. The Applicant was asked about the assessment by neuropsychologist Ms Lisa Zipparo, that he constitutes a ‘moderate’ recidivism risk. He responded: ‘If I put the right steps in, I won’t reoffend’. The Applicant agreed he has unmet rehabilitation needs that are yet to be meaningfully addressed.

    Children

23. The Applicant said he was denied contact with his children after breaking up with Partner 1 and has not seen or had contact with them for six or seven years. The children are now between 12 and 17 years of age. His sister’s efforts to negotiate contact and access were unsuccessful. If allowed to remain in Australia, the Applicant intends pursuing his rights to resume contact and some parental role through the courts.

24. The Applicant claims to have a relationship with his youngest child, who he fathered with a woman the Tribunal will refer to as ‘Partner 2.’ He said Partner 2 allows him monthly telephone contact with the child and, although she is in a new relationship and has given birth to children with her new partner, she supports the Applicant playing a continuing role with their child. The Applicant agreed Partner 2 had not provided any evidence for the current proceeding, despite purportedly being aware of his visa issues. He has not contacted Partner 2 about giving evidence but claimed his sister did so, although he does not know the outcome of their discussions.

25. The Applicant said his sister in Australia has five children but could not precisely recall how old they are, or schools they attend, or the name of the youngest child.

    Other conduct

26. The Applicant agreed he has a bad driving record and does not hold a licence. He claimed not to know that his driving offences were crimes needing to be disclosed in Incoming Passenger Cards (‘IPC’) after returning from international travel. He said that ‘driving and violence are two different things’, and only violent crimes need to be disclosed on an IPC.

27. The Applicant was administered a warning about his privilege against self-incrimination, before being asked about police reports that he was found in possession of scales and clip seal bags and may have sold ice to others.[42]  The Applicant declined to answer, and the Tribunal draws no adverse inference. When asked about references to cling wrap, a razor, a syringe, and fermenting liquid being found in October 2020 in a cell he occupied, the Applicant denied these items were his.

    [42] Ibid 313;339.

    Protective factors

28. The Applicant frequently returned to the interests of his children as a strong motivating factor preventing future relapse and reoffending. As mentioned before, he intends pursuing access to his children with Partner 1 through legal action.

29. The Applicant said he remains very close to his sister in Australia and resided with her family ‘on and off’ during the last six years. He plans to live with her again if released and will rely on her continuing support to stay off drugs. The Applicant agreed there have been times when he was not permitted to stay at his sister’s home because of drug use.

    Intentions if repatriated

30. When asked by Mr Nikjoo if he could ‘re-start’ his life in New Zealand, the Applicant said this would be a ‘lot harder’ than in Australia. His mother, three sisters, other relatives and friends live in New Zealand, but the Applicant said they could not support him. He initially claimed not to have contacted them ‘for a number of years’, but subsequently agreed he has a ‘beautiful bond’ with his mother and sisters[43] and continues to communicate with them frequently by text, including on the day before the hearing. He accepted that two sisters in New Zealand provided a statement in which they said: ‘We will do what we can to support him’.[44] The Applicant was also asked about a reference stating he was the ‘sole financial provider for his parents’ in 2019,[45] and that he was recorded as stating in 2021 that he ‘has a positive relationship with his family…his parents, sisters…[and he] is able to turn to them for support’.[46] The Applicant agreed he provided financial support for his mother, and that family members and friends, one of whom is a local government official, would support him: ‘I’m not saying they won’t support me, but they are not strong relationships for several years’. He said it would be a ‘different kind of support’, however, to what he could expect from his sister in Australia. The Applicant said he remained concerned about providing for his needs in New Zealand, fearing he would again become homeless.

    [43] Exhibit A3.

    [44] Exhibit R1, 106.

    [45] Ibid 111.

    [46] Ibid 241-242.

    Evidence of Applicant’s sister

31. The Applicant’s sister, who will be referred to as ‘Ms H’, was the only other witness to give oral evidence at the hearing. She adopted her emails dated 10 November 2022 and 23 October 2022 as her statement in this proceeding. Ms H’s evidence centred on the consistent support she has provided to the Applicant. She is an impressive and articulate witness who clearly loves the Applicant, has provided staunch support for a long time, and wants what is best for him.

32. Ms H said the Applicant lived with her family ‘whenever he needed a home’, including after his relationship with Partner 1 broke down. She recalled the relationship ‘started to break up’ in or about 2012. Ms H said there was some contact with the children, but after the relationship ended in or about 2015, Partner 1 eschewed contact with the Applicant. This caused feelings of frustration and anger, such that the Applicant ‘struggled to find coping skills to communicate with [Partner 1]’. Ms H said prior to the relationship ending, the Applicant’s children adored him, but her last contact with the children was approximately five years ago and subsequent efforts to resume contact with Partner 1 via social media, telephone, and ‘driving to the children’s school’, were unsuccessful. She incidentally encountered Partner 1 and her family at a shop some years ago but claimed to have been blocked in her attempt to resume telephone contact. She recalled getting through once by telephone but said one of the Applicant’s children told her: ‘I can’t talk to you and hung up’. Despite the passage of years, Ms H believes there is still a possibility of repairing the relationship with Partner 1. She said the Applicant now intended to ‘go the legal way’ to regain contact and access with the children.

33. Ms H said she communicates with Partner 2 and has previously enjoyed some access with the Applicant’s youngest child, who was born in 2018. She said Partner 2 now lives about 45 minutes driving time away, is in a new relationship, and has had two more children. Ms H claimed Partner 2 is open to the Applicant playing a future role with their child, which depends on whether she and the child are comfortable with the arrangements. When asked why Partner 2 had not provided direct evidence, Ms H said she had not asked and was unaware if the Applicant had. Ms H was ‘vaguely aware’ of the Applicant’s evidence at the last hearing that Partner 2 had refused to provide a statement.

34. When asked about the Applicant’s offending, Ms H said she was unaware of the ‘specifics’ but knows the Applicant used drugs. She had not personally seen him drunk or drug-affected and warned him not to bring negative peers to her home. There had been past occasions where she asked him to leave the home, including because of a ‘feeling that something wasn’t right [and] there was a darkness in [her] home’. This caused arguments within her family and she told the Applicant: ‘You have to leave because you are bringing this darkness to my home’. Ms H said her support remains conditional on the Applicant remaining drug-free and compliant with here ‘rules and expectations’.

35. During cross-examination by Ms Saunders, Ms H said she was unaware of the Applicant’s drug-taking and conviction for drug possession while in custody. She stated: ‘I am obviously disappointed’. Ms H said she ‘turned to culture and not professionals’ in the past but was now better prepared to assist. This would involve: ‘outpatients, rehab, counselling – immediately being taken to a doctor for a mental health plan and tapping into available resources’. She would also try to ‘monitor his whereabouts’ and help him find a job. When asked if she discussed the possibility of the Applicant entering a residential rehabilitation facility, Ms H said she is yet to decide whether this is ‘part of the right steps’ needed to progress the Applicant’s rehabilitation.  

36. If the Applicant is repatriated, Ms H said discussions with family in New Zealand had resolved that he could ‘stay temporarily and they will help him get a job’. When asked what ‘temporarily’ meant, Ms H said it would likely be measured in weeks and not months.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community from criminal or other serious conduct

    The nature and seriousness of the conduct

1. Multiple findings of guilt and convictions are recorded against the Applicant during the last 17 years, within the following categories of offending:

   (a)Drug-related offences: April 2003; May 2019; and April 2020;

   (b)Vehicle offences: Such as dangerous operation of a vehicle, unlawful use of motor vehicles, or fail to stop (November 2003; May 2019; April 2020);

   (c)Conditional liberty offences: Including breach of bail and other court orders (November 2008; January 2009; November 2014; April 2015; August 2015; November 2016; May 2019; and April 2020);

   (d)Possessing a knife in a public place: May 2019;

   (e)Dishonesty offences: August 2015; May 2019; and

   (f)Public disorder or nuisance offence: August 2008.

2. The sentencing remarks for the Applicant’s most recent offending state his unlawful use of motor vehicles was the “most serious” of his conduct.[47] This includes theft of vehicles from homes while the victims slept and unsafe driving without a valid licence.  His possession of a knife in a public place, offending against police through evasion, and repeated contravention of conditional liberty arrangements, are also serious. The Applicant’s conduct reflects a persistent disregard for Australian laws.

   [47] Ibid 52 [2].

3. Imprisonment is the most severe criminal sanction available and a sentence of last resort.[48] The Applicant has previously received sentences where a conviction was not recorded, or non-custodial dispositions imposed. The sentences of imprisonment he has received are below the statutory maximums available. That said, the imposition of any term of imprisonment reflects the objective seriousness of his crimes.[49] There is a clear trend of increasing seriousness in the Applicant’s conduct over time.[50]

   [48] See for example: Sentencing Advisory Council, “Imprisonment,” <

   [49] Clause 8.1.1(1)(c) of the Direction.

   [50] Clause 8.1.1 (d) of the Direction.

4. The Applicant has offended frequently despite multiple opportunities to rehabilitate and change his ways.[51] There are several noteworthy periods where convictions are not recorded, most notably between November 2003 and August 2008, between January 2009 and November 2014, and between November 2016 and May 2019. On each occasion, however, the Applicant reoffended. The cumulative effect of his repeated offending has imposed costs and consequences on his victims and the broader community, including through police, judicial, and other interventions.[52] 

   [51] Clause 8.1.1(1)(d) of the Direction.

   [52] Clause 8.1.1(1)(e) of the Direction.

5. The Applicant has failed to disclose criminal offences on his IPC several times.[53] The Tribunal has considered his explanations,[54] which are unpersuasive given he has more than ‘driving offences’ on his record. This includes dangerous operation of a vehicle resulting in the injury of six people in 2003,[55] and committing public nuisance in 2008. The Tribunal does not accept that only violent offences must be disclosed on an IPC. Aspects of the Applicant’s latest statement are also false, and the Tribunal does not accept that the erroneous claims about abstinence from drugs in custodial settings arise from tiredness. The Applicant has provided false or misleading information in an official context.[56]

   [53] Exhibit R1, 44-49.

   [54] Ibid 98.

   [55] Ibid 259.

   [56] Clause 8.1.1(1)(f) of the Direction.

6. Clause 8.1.1(1) of the Direction enables consideration of both criminal offending and ‘other conduct to date.’ This encompasses conduct for which there is evidence supporting a factual finding, even though no conviction resulted.[57] For example, the Applicant has driven vehicles despite using drugs like methylamphetamine on the same day.[58] He also agreed that he purchased and used illicit drugs on many more occasions than those reflected in his criminal history. He has continued to use illicit drugs in custodial settings.[59] The Tribunal does not accept the Applicant’s explanation that some positive drug tests arose from his proximity to others taking illicit drugs. There is no expert evidence to corroborate this. Moreover, IHMS records refer to him ‘smoking Bupe daily’[60] and he was found guilty in the Brisbane Magistrates’ Court on 29 September 2021 of Possessing dangerous drugs[61] in immigration detention.[62] The Tribunal is satisfied the Applicant’s misconduct in custodial settings includes multiple instances of illicit drug use.

   [57] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] 276 FCR 516, 64.

   [58] Ibid 295; 300.

   [59] Exhibit R3, 60-63.

   [60] Ibid 64-70.

   [61] Exhibit R2, 1.

   [62] Exhibit R1, 264.

7. The Tribunal is not bound by the rules of evidence[63] and summonsed records are routinely lodged in mandatory cancellation cases. It is not a necessary precondition for weight to be placed on these records that their authors are available for cross-examination.[64] The probative value of this material is routinely tested during questioning, and it is for the Tribunal to assess and weigh such material. The Tribunal asked the Applicant about reports that he bought and sold drugs to others.[65] He chose to exercise his right to silence, and no adverse inference is drawn from this. The Tribunal places no weight on these reports.

   [63] AAT Act, s 33(1)(c).

   [64] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 [53], [69] (Anderson J).

   [65] Exhibit R1, 313; 339.

8. The Tribunal has considered the Applicant’s written explanations for two custodial incidents in October 2020.[66] Although the Tribunal does not discern any motive for the authors of these prison reports to produce other than an accurate contemporaneous record, any information that does not lead to charges or other disciplinary proceedings must be treated with caution. Kenny J has noted that such information must be treated cautiously, and due regard given to ‘its cogency and reliability’.[67] Anastassiou J has expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[68] Given the Applicant’s denials and the absence of evidence that any action was taken against him regarding the two custodial incidents in October 2020, the Tribunal places no weight on these incidents. The prejudicial impact of doing otherwise is too great.

   [66] Ibid 99-100.

   [67] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].

   [68] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship [2009] 112 ALD 67, [85] (Edmonds J) and echoed by the Full Court on appeal in Brown v Minister for Immigration and Citizenship [2010] 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).

9. The Tribunal finds the totality of the Applicant’s offending and other conduct is serious.       

   Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

10. The Applicant stated that if given an opportunity to remain in Australia he “will not repeat in any way the behaviours…displayed over the past couple of years”.[69] By way of contrast, he “would have no interest of staying drug free” if returned to New Zealand.[70]

    [69] Exhibit R1, 161.

    [70] Ibid 79.

11. The Applicant has previously abused alcohol and drugs like cannabis, cocaine, and ice as his “drug of choice”,[71] and reported gambling as a past problem.[72] The Applicant told clinical neuropsychologist Ms Zipparo he started smoking cannabis at the age of 12, then stopped using recreational drugs when his first child was born.[73] He similarly claimed to have been a heavy drinker but stopped a decade ago.[74] He contextualises his use of ice,[75] as following the breakdown of his relationship with Partner 1 and the subsequent loss of contact with his children. He said drug addiction caused him to lose jobs, a painting business, his driver’s licence, and to become homeless at times. He has previously claimed to have abstained from drugs in prison and is ‘adamant…he would never use drugs again’.[76] For the reasons discussed earlier, his abstinence claims in custodial settings are false.

    [71] Ibid 228.

    [72] Ibid 229.

    [73] Ibid 95.

    [74] Ibid 95.

    [75] Ibid 228.

    [76] Ibid 95.

12. The Applicant stated in documentary evidence that if allowed to remain in Australia he “intends to seek counselling”[77] and put himself:

    “…into a drug rehab course or A.T.O.D.S to prevent further use…It wasn’t until faced with 501 that I was woken to the reality of losing all I have worked for, my family, friends, and…children. I have put in for drug courses but the waitlist is that of 1700 prisoners…but I believe with the right courses and support this wont be an issue and I have remained drug free for seven months now whilst incarcerated as I felt no need for it, even more so now facing deportation.” [78]

    [77] Ibid 88.

    [78] Ibid 76.

13. In terms of protective factors, the Applicant said he intends staying away from “bad company”[79] and relying on his sister’s support and guidance. Mr Nikjoo submitted that being close to his children ‘is something that motivates [the Applicant] greatly to stay on track to his rehabilitation’, and he now realises any further offending would end his chances of remaining in Australia.

    [79] Ibid 87 [21].

14. The Tribunal has considered a medico-legal report letter from Ms Lisa Zipparo dated 25 September 2020,[80] a summary of which follows:

    (a)After applying the HCR-20-V3 instrument,[81] Ms Zipparo found the Applicant constitutes a “moderate” risk of “future violent reoffending”.[82] She considered this rating was “heavily influenced by his history of drug use and poor coping skills”.[83]

    (b)Ms Zipparo said the Applicant had “reported many protective factors” that could change his future risk of reoffending to low “if the insight and motivating factors which he articulated at the current interview remain driving forces”.[84]

    (c)Ms Zipparo “strongly” recommended the Applicant “access a community-based drug and alcohol counselling service” and seek support to try and help re-establish “constructive relationships with his former partners and access to his children”.[85]

    [80] Exhibit R1, 93.

    [81] Hare Psychopathy Checklist – Revised, 2^nd Edition (PCL-R), and Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3).

    [82] Exhibit R1, 96.

    [83] Ibid.

    [84] Ibid 96-97.

    [85] Ibid 93, 97.

15. The Tribunal has considered a letter dated 18 August 2020 from “Lives Lived Well” in Queensland, which states the Applicant can access their Alcohol and Other Drug (AOD) service if released.[86] The letter appears to be a response to a general enquiry and is addressed “To whom it may concern.” The author of the letter was not called as a witness and there is no evidence of any previous association with the Applicant. As disclosed during oral evidence, the Applicant never followed up the ‘virtual’ rehabilitative opportunity referred to in the Lives Lived Well letter.

    Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

    [86] Ibid 145-146.

16. The nature of the harm to the Australian community if the Applicant reoffends is potentially grave. This includes by driving vehicles at high speed while affected by illicit drugs or trying to evade police. This could cause the death or serious injury of other road users or pedestrians. A repeat of the Applicant’s dishonesty offending poses potential financial and psychological harm for victims, not least of which is a sense that they are less secure in their own homes. It is noteworthy the Applicant has not been diverted from such conduct despite a range of sanctions. He has also not been dissuaded from offending while in custody, despite the dire risk to his ability to remain in Australia.

17. The Applicant’s exposure to illicit drugs at a young age has developed into a more serious and persistent addiction throughout adulthood. The Tribunal accepts Ms Zipparo’s opinion that his persistent offending since 2003 is heavily influenced by a “history of drug use and poor coping skills”.[87] The Tribunal considers the Applicant’s rehabilitation is incomplete, which is underscored by the claim that he intends remaining abstinent in Australia but has ‘no interest’ in staying drug free if returned to New Zealand.[88] The conditional nature of his abstinence intentions reflects a concerning lack of insight and commitment. His rehabilitative plans, and those referred to by his sister, are expressed at a high level of generality and are aspirational. His past failure to meaningfully engage with rehabilitative services casts doubt on his promises to do so if released. In any event, decisions should not be delayed for rehabilitation to be undertaken.[89]

    [87] Ibid 92.

    [88] Ibid 79.

    [89] Clause 8.1.2(2)(b)(ii) of the Direction.

18. Despite the Applicant’s claims about developed insight and rehabilitative intent, several aspects of his evidence cut across these claims. This includes a finding of guilt for possessing dangerous drugs while in immigration detention,[90] reports by IHMS staff about him using Buprenorphine, failure of several drug tests for which he has given implausible explanations, and false abstinence claims in his latest statement. This diminishes the force of his claim that he intends meaningfully changing the course of his life if released. The Applicant’s drug-taking while in immigration detention is particularly concerning, given his ability to remain in Australia was under active consideration. He has previously identified the ‘need to self medicate with…mind altering substances is the core of [his] problems’,[91] yet continued doing so while his visa status was under review.

    [90] Exhibit R2, 1-2.

    [91] Exhibit R1, 161-162

19. In terms of protective factors, these are not substantially different from those of the past. The Applicant has not worked for five years, and his sister’s accommodation offer is conditional on his abstinence,[92] which he has not consistently maintained. He did not disclose his illicit drug-taking in immigration detention to his sister. The interests of his children, support of his sister, and past employment have not motivated meaningful changes in the Applicant’s life. He has been on notice since the cancellation of his visa approximately two-and-a-half years ago that his immigration status is under review but was convicted of drug possession while in detention. The Applicant has considerable unmet rehabilitative needs[93] and no persuasive plans to address these.

    [92] Ibid 250-251; Exhibit R2, 9 [43]; Exhibit R3, 5 [35]-[47]; 6 [1]-[19]; 7 [32]-[47], 8 [1]-[32]; 9 [40]-[46].

    [93] Exhibit R1, 236; 244.

20. The Tribunal does not accept Ms Zipparo’s conclusion about the Applicant’s risk of violent offending being ‘moderate’ given the absence of such offences in his criminal history. On current evidence, however, his general recidivism risk is at least moderate.

21. When regard is had for the serious nature of the Applicant’s offending and other conduct, coupled with a moderate recidivism risk, and the potentially significant harm resulting from any repeat, the risk he poses to the community is unacceptable. This primary consideration weighs substantially against revocation.

    Family violence committed by the non-citizen  

    Tribunal consideration

22. The Tribunal notes references in evidence to the Applicant being subjected to domestic violence orders, in which Partner 1, their children, and a relative of Partner 1 are named as protected persons.[94] The Applicant denies he ever committed domestic violence. It is not clear these orders were ever served on the Applicant and the evidence discloses they were either struck out or withdrawn in 2016. There is also no family violence offending in the Applicant’s criminal history.

    [94] Ibid 242-243.

    Tribunal findings: Family violence committed by the non-citizen

23. The Tribunal is not satisfied the available evidence provides a reliable basis to find the Applicant engaged in family violence within the meaning of the Direction. This primary consideration is therefore not enlivened and weighs neutrally.

    Best interests of minor children in Australia affected by the decision

    Tribunal consideration

24. The Applicant invokes the interests of four biological children from two previous relationships, and an avuncular role with his sister’s five children. In respect of the former, he claims to have previously taken his children to the park, on rides, to the beach, assisted them with “schooling”, and acted as a “role model”.[95] The Applicant said his children have been “impacted” by his imprisonment, and their mental and emotional health would be further exacerbated by his removal.[96]

    [95] Exhibit R1, 72.

    [96] Ibid.

25. The evidence about the Applicant’s contact with his children is inconsistent and unreliable. An assessment dated 2021 states the Applicant ended the relationship with Partner 1 nine years earlier (in approximately 2010) and had no contact with his children, who remained “in the care of their mother”.[97] The Applicant stated in documentary evidence he does not see his children because of the “time and commitment of their mother (sic)”.[98] In a letter dated 9 November 2020, however, he stated that he has not seen his three eldest children for three or four years but is in “constant contact” with his youngest child.[99] Submissions from his previous authorised representative refer to the relationship with his former partner as “broken down and…irretrievable” because of his drug use, “involvement in criminal conduct”, and inability to “return to …work”, which means he “is unable to meet his four children”.[100] Ms Zipparo noted the Applicant was ‘denied access’ to his four children for a time because of his poor behaviour due to ice addiction”. She strongly recommends he tries to re-establish ‘constructive relationships with his former partners and access to his children’.[101] The Applicant’s and Ms H’s oral evidence are that he has not had any contact with his children with Partner 1 for approximately six or seven years.  

    [97] Ibid 230-231.

    [98] Ibid 72.

    [99] Ibid 100.

    [100] Ibid 89 [28]-[30].

    [101] Exhibit R1, 97.

26. Claims relating to the role played by Ms H in trying to broker parental access for the Applicant are also somewhat inconsistent. It was previously claimed Ms H is in ‘regular contact’ with his children and keeps him ‘informed about their wellbeing’.[102] Ms H’s evidence at the February 2021 hearing, is that she has not looked after the Applicant’s three eldest children for two years[103] (since approximately early 2019) but has looked after the youngest child more recently. Ms H also referred to the limited and supervised nature of the Applicant’s past contact.[104] Her evidence at the current hearing is she has had no contact with Partner 1 or the Applicant’s three eldest children for approximately six or seven years.

    [102] Exhibit R1, 94.

    [103] Exhibit R3, 10 [13].

    [104] Exhibit R3, 10-12.

27. The Applicant considers he has been ‘distanced’ from his children’s lives, which is the ‘core of [his] problems’ but considers his ‘bond with them is still salvageable’.[105] It is submitted by Mr Nikjoo the Applicant is a ‘conscientious father’ and ‘extremely dedicated family man.’[106] It is further submitted that:

    ‘For the sake of his children, the applicant has all intention to put his past behind him and rebuilding his relationship with his former partners in order to establish his access to his children’s lives. We submit it is imperative for his minor children to have this opportunity and have their biological father back in their lives.

    Whilst the applicant has had a limited contacts with his daughters due to lack of court process, he has a genuine intention to engage proper legal process to secure access to his daughters. As per his son, he has a better prospect as he is in a better terms with his second partner, it is submitted.’[107]

    (Errors in original; references omitted.).

    [105] Ibid 165-167.

    [106] ASFIC, 10 [32].

    [107] Ibid 11 [33]-[34].

1. A report dated early 2021 states that a temporary protection order was initiated by Partner 1 in 2015, naming her, their children, and one of Partner 1’s relatives as protected persons.[108] The report states the Applicant has had no contact with the children since the relationship with Partner 1 ended[109], and owed money for $3000 in child support.[110] The Applicant’s uncorroborated evidence at this hearing is he has repaid that debt.

   [108] Exhibit R1, 242.

   [109] Ibid 243.

   [110] Ibid 239.

2. The Applicant contextualises his offending in part as arising from a ‘loss of access’ to his children, because their mothers are in ‘new relationships.’[111] He claims to have ‘removed all animosity towards the mothers of [his] kids,’[112] and hopes to ‘mend [the] relationship’. If removed, he fears that his ex-partners ‘may not permit his children to visit him in New Zealand’ or allow him to contact them by telephone or social media.[113]

   [111] Ibid 159-160.

   [112] Ibid 162.

   [113] Ibid 89 [31]-[32].

3. The Applicant claims to have a ‘positive relationship’ with his nieces and nephews and will play a prominent avuncular role if released.[114] The Tribunal has also considered his sister’s evidence about the Applicant’s relationship with her children.[115]

   [114] Ibid 90.

   [115] Exhibit R3, 7 [16]-[30].

   Tribunal findings: Best interests of children

4. The Tribunal is mindful it must consider, to the extent possible, the best interests of each child in Australia affected by the decision. It is not possible on the available evidence, however, to distinguish between the individual interests of the Applicant’s biological children and his nieces and nephews. Regardless, the Tribunal is confident to proceed on that basis.

5. The Applicant has not seen or spoken with his biological children with Partner 1 for approximately six or seven years. There is also a dearth of evidence about any financial, practical, or emotional impact on the children if the Applicant is repatriated. The current evidence does not persuasively support the Applicant’s contention that his resumption of a role in the children’s lives would be welcomed or is reasonably in prospect. Neither former partner, nor any of the children, one of whom is approaching adulthood, has provided any evidence. This inhibits reliable findings about the current extent of the Applicant’s relationship with them. Others have performed the primary parental roles for these children and the Applicant’s relationship with them has been characterised by long periods of absence and limited meaningful contact.[116] His intention to regain some contact with the three elder children is aspirational at best. This follows from references to a protection order in 2015 / 2016, childcare debt, and Partner 1’s avoidance of contact. It is not possible to speculate on whether a future application in the Family Court may result in some access.

   [116] Direction, cl 8.3(4)(a).

6. The Tribunal accepts there is the potential for the Applicant to play a positive parental role with the child he shares with Partner 2, and his sister’s minor children, providing he remains abstinent and law-abiding. For the reasons previously adduced, however, this is problematic. There is no direct evidence from Partner 2, his youngest child, or his nieces and nephews, two of whom are adults. The Applicant displayed limited knowledge about his nieces and nephews such as ages, schools attended, or the name of the youngest child. His role in their lives is somewhat limited and others have performed the primary parental role. His relationship with them is also characterised by long absences and limited meaningful contact. This includes times when he has been in the thrall of his addictions, or not permitted to stay at his sister’s home, or imprisoned. There is no evidence the Applicant has provided any essential practical or emotional support to these children for some time. That said, the Tribunal infers from the evidence of the Applicant’s sister that these children would like their uncle to remain in Australia and have some relationship with him. The interests of his minor nieces and nephews are therefore likely to align with revocation. 

7. On currently available evidence the Tribunal is unable to conclude that revocation is in the best interests of the Applicant’s three eldest children. Despite no evidence from Partner 2, the Tribunal is willing to infer there is some prospect of him resuming a parental role with his youngest child. The Tribunal accepts revocation is in the best interests of this child and his minor nieces and nephews; although this is conditional on him remaining abstinent and law-abiding, which is problematic. On balance, this primary consideration only carries slight weight in favour of revocation.

   Expectations of the Australian community  

8. Clause 8.4 (1) of the Direction provides:

   1)       The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

9. Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:

   (a)  acts of family violence;

   (b)  …;

   (c)   commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

   (d)  commission of crimes against government representatives or officials due to the position they hold , or in the performance of their duties

   ….

10. Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.

11. Clause 8.4(4) of the Direction correlates with the Full Court’s reasoning in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[117] It establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[118]

    [117] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).

    [118] Ibid at 473 [75]–[76] (Charlesworth J).

12. The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[119]

    [119]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056.

13. Submissions by Mr Nikjoo in relation to this primary consideration include:

    ‘…the applicant has been living in Australia for 21 years and contributed to the Australian community. As such Australia may afford him “a higher level of tolerance” for his “criminal or other serious conduct” because he lived in Australia from his early age of 15 (5.2(4) Direction 90).

    Having said that, the applicant concedes this primary consideration is against him but should not be given such weight, whether individually or jointly, to outweigh other considerations in his favor.’[120]

    [120] ASFIC, 14 [43]-[44].

14. The Applicant has repeatedly breached the expectation of the Australian community that non-citizens obey Australian laws. His offending includes crimes against police like Evasion, Contravene direction or requirement, and Fail to stop, which raise serious character concerns.[121] As a norm, the community would expect the Government not to allow him to remain in Australia.

    [121] Direction, cl 8.4(2)(d).

15. This primary consideration weighs substantially against revocation.

    OTHER CONSIDERATIONS

    International non-refoulement obligations

    Tribunal consideration: non-refoulement

16. The Applicant has not made any non-refoulement claims and none arise from the evidence. The Tribunal finds this consideration is not enlivened and carries neutral weight.

    Extent of impediments if removed

17. Despite leaving New Zealand at a young age, there are no discernible language or cultural barriers for the Applicant to overcome. That said, having not returned to New Zealand for the last 10 years, and given he would be repatriated after a relatively lengthy period in custodial settings, the Tribunal accepts there will be a period of re-adaptation.

18. The Applicant said he completed Year 11 at high school, and obtained a Certificate III in Business, Certificate III in Painting, a construction Industry White Card, and an EWP licence for high-risk work.[122] He has lived in Australia since the age of 15 and described himself during the consultation with Ms Zipparo as a “jack of all trades”.[123] He has worked as a concreter, boner, fencer, and painter. Mr Nikjoo said the Applicant has worked for ‘a total of 18 years…out of a total of 21 years lived in Australia.’ This conflicts somewhat with the Applicant’s oral evidence, however, that he has not worked for the last five years. Mr Nikjoo also contends the Applicant has ‘no skills to give him any chance of immediate employment in New Zealand’.[124] Again, these submissions conflict with other evidence before the Tribunal. The Applicant has stated the prospect of permanent separation from his children will cause him ‘mental and emotional pressure’, adversely impact his ability to address his daily needs,[125] and likely cause him to relapse into drug use and reoffend.

    [122] Exhibit R1, 77.

    [123] Ibid 94.

    [124] ASFIC, 14 [45].

    [125] Exhibit R1, 90 [37].

19. The Applicant is 29 years of age. Notwithstanding references in the evidence to him suffering some back and wrist pain, he stated in his 2020 PCF that he has no diagnosed medical or psychological conditions and takes no medication.[126] He similarly told Ms Zipparo he has no “chronic conditions or illnesses”.[127] The only medication he refers to taking is over-the-counter pain relief for “general pain” like “headaches etc”.[128] This was confirmed in his oral evidence. The Tribunal notes the reference in evidence to a Liver Function Test that precluded the Applicant’s participation in the OST, which he declined in any event. There is no expert evidence about any impairment arising from the Liver Function Test

    [126] Ibid 78.

    [127] Ibid 95.

    [128] Ibid 78.

20. The Applicant submits he could find it hard in New Zealand ‘without family, work, children’, would have a ‘tough time restarting his life again’,[129] and “would have no interest of (sic) staying drug free”.[130] He has previously claimed that contact with his parents, siblings and their families in New Zealand is on “rare occasions [when they] travelled to Australia”. Other evidence, however, refers to him having previously been the “sole financial provider for his parents”,[131] and that his parents, albeit separated, and his sisters, are his “main support”.[132] In oral evidence, it emerged the Applicant frequently communicates with some family members in New Zealand, who have resolved to assist him with accommodation and work.

    [129] Exhibit R1, 90 [36].

    [130] Ibid 79.

    [131] Ibid 107.

    [132] Ibid 242.

21. The Tribunal found the Applicant’s claims about this consideration somewhat overstated. In an email dated 23 October 2022,[133] his cousin refers to the Applicant’s ‘beautiful bond with his mum and his sisters’. There are letters from his sisters and other relatives and friends in New Zealand, offering some support. There is no evidence the Applicant could not competitively apply for the sort of work he performed in Australia. Although he may suffer emotional hardship if unable to remain in Australia, which may cause depression and/or relapse into drug use, there is no evidence he would be treated differently to any other New Zealand citizen if he required social, medical, economic, or other support.

    [133] Exhibit A3.

22. The impediments confronting the Applicant may cause some short-term hardship but are not insurmountable. This consideration weighs moderately at best in favour of revocation.

    Impact on victims

23. In the absence of any direct evidence from the victims or their families about the impact of a decision in this matter, the Tribunal finds this consideration carries neutral weight. 

    Links to the Australian community  

24. Clause 9.4 provides that a decision-maker must have regard to cl 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests in the event they are not allowed to remain in Australia. Any work previously undertaken by the Applicant in Australia is insufficient to overturn the presumption that Australian business interests are only enlivened where a decision under s 501 or 501CA of the Act significantly compromises the delivery of a major project, or delivery of an important service. This consideration carries neutral weight.

    The strength, nature, and duration of ties to Australia

25. The Applicant refers to over thirty aunts, uncles, nieces, nephews, and cousins in Australia.[134] He claims to be “very close to all [his] family in Australia [and his] absence would cause distress and worry”.[135] He claims that he often turns to his family members in Australia “more than back in New Zealand”.[136]

    [134] Ibid 75.

    [135] Ibid.

    [136] Ibid.

26. The Tribunal has considered a brief letter from Ms H dated 21 July 2020.[137] The Tribunal has also considered a brief letter from another two of the Applicant’s sisters, who reside in New Zealand.[138] The Applicant states his sister in Brisbane and her five children are all Australian citizens, which is accepted. The two eldest nieces and nephews are now adults, but no evidence was provided from them.

    [137] Ibid 105.

    [138] Ibid 102.

27. The Tribunal has considered two undated, unsigned letters from friends of the Applicant living in New Zealand.[139] The letters refer to the Applicant as an “amazing father [and] a great provider”. No reference, other than a general inference in one letter, is made about the Applicant’s persistent drug use and crimes. The authors were not called as witnesses, and there is no evidence to reliably conclude they fall within the meaning of cl 9.4.1(2)(b) of the Direction. The Tribunal places little weight on these references, which nevertheless show that apart from his family in New Zealand, the Applicant appears to have some friends there who continue to support him.

    [139] Ibid 107-111.; 147-150.

28. The Tribunal has considered several letters dated between 22 February 2019 and 14 July 2020 from friends of the Applicant, that do not reflect a complete understanding of his circumstances.[140] The authors were not called as witnesses and there is no evidence to reliably conclude they fall within the meaning of cl 9.4.1(2)(b) of the Direction. The Tribunal places little weight on these letters. The Tribunal has considered two emails dated 23 and 24 October 2022 from cousins of the Applicant.[141] These were accepted into evidence by consent of the parties and without the need for cross-examination. The emails are brief and do not evince knowledge of the Applicant’s offending.

    [140] Ibid 106.

    [141] Exhibits A3 and A4.

29. The greatest impact arising from revocation is likely to be on the Applicant’s sister in Australia who has provided him with longstanding love and support. It is accepted she would be emotionally affected by an adverse decision. There may also be an emotional effect on his adult nephews, nieces and other members of his family and friendship group in Australia.

30. As detailed earlier, the Applicant has completed Year 11 and worked as a painter, concreter, boner, and other roles. In terms of contributions to Australia, he refers to paying taxes, running a painting company with his father, starting a family, and “for the better part of [his life in Australia, being] a constructive member of society.”[142] He also referred to “certifying [him]self to become a Volunteer Youth Worker to help youth off drugs”.[143] There is no evidence from the organisations or beneficiaries of that purported volunteering. On balance, the Tribunal places some weight on the positive contributions made by the Applicant.

    [142] Ibid 169.

    [143] Ibid 78..

31. Notwithstanding his persistent addictions and crimes, and a dearth of evidence regarding the citizenship or residency status of those who have lodged supportive letters, the Tribunal accepts the Applicant has developed a network of supportive ties in Australia. The Tribunal accepts his sister’s evidence that she is his most significant source of support.  On balance, this consideration weighs substantially in favour of revocation.

    Additional considerations

32. No additional considerations were advanced by the parties; and the Tribunal has not identified any ‘other considerations’ under the non-exhaustive list at cl 9(1) of the Direction.

    CONCLUSION

33. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal sees no reason on these facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.

34. The totality of the Applicant’s offending and other conduct is serious.  When coupled with a moderate recidivism risk and the potentially significant harm resulting from any repeat of his crimes, the risk he poses to the community is unacceptable. Given his repeated breaches of the expectation that non-citizens obey Australian laws, the community would expect the Government not to allow him to remain in Australia.

35. Revocation is in the best interests of the Applicant’s youngest child with Partner 2 and his minor nieces and nephews, albeit this is conditional for the reasons previously mentioned. Of the other considerations weighing in favour of revocation, the Applicant may be confronted by short-term hardship in re-establishing himself in New Zealand, but this is not insurmountable. He can count on some practical and emotional support from family and friends in New Zealand. That said, removal from Australia would cause his sister in Australia significant emotional distress. His adult nephews and nieces, and other friends and family in Australia, may also be emotionally affected.

36. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the weight given to the primary considerations ‘Protection of the Australian community,’ and ‘Expectations of the Australian community,’ is considerably greater than the combined weight given to the primary consideration ‘Best interests of minor children in Australia’ and the other countervailing considerations.

    DECISION

1. It follows that the Tribunal affirms the decision under review.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for the decision of Senior Member A.A. Nikolic AM CSC

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

Associate

Dated: 28 November 2022

Date of hearing:

16 and 17 November 2022

Advocate for the Applicant:

Solicitors for the Applicant:

Mr Fardin Nikjoo

Nikjoo Lawyers

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Charlotte Saunders

Minter Ellison