Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 372
•2 March 2021
Au and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 372 (2 March 2021)
Division:GENERAL DIVISION
File Number(s): 2020/8313
Re:Salafai Tauapai Au
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr N A Manetta
Date:2 March 2021
Date of written
reasons:4 March 2021
Place:Adelaide
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
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Senior Member Dr N A Manetta
Catchwords
Non-revocation of mandatory cancellation of visa under s 501(3A) of Migration Act 1958 -applicant sentenced to term of imprisonment – established history of criminal offending – misuse of drugs - Direction No. 79 – primary considerations – nature and seriousness of conduct – cumulative effect of reoffending - risk to Australian community – best interests of minor children – expectations of Australian community – other considerations – strength, nature and duration of ties - extent of impediments if removed - decision under review affirmed
Legislation
Migration Act 1958
Cases
LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 79 issued under s 499 of the Migration Act 1958
REASONS FOR DECISION
Senior Member Dr N A Manetta
I delivered an oral decision in this matter on Tuesday, 2 March 2021. The last day of the hearing of evidence and submissions had been the preceding Thursday, and an oral decision by 2 March 2021 at the latest was essential to meet the 84-day time requirement under s 500(6L) of the Migration Act 1958.
I have now been asked for written reasons. What follows is the set of reasons I read out to the parties on 2 March 2021, with minor edits only.
This is an application by Mr Salafai Tauapai Au, a New Zealand citizen, seeking a review of a decision of the respondent’s delegate dated 8 December 2020. By this decision, the delegate refused to revoke the cancellation of Mr Au’s visa[1]. The cancellation had occurred on 12 May 2020 under s 501(3A) of the Migration Act 1958, a provision that obliges the respondent to cancel a person’s visa in certain circumstances. One of these circumstances arises when a person has been sentenced to a term of imprisonment of 12 months or more, and must serve at least a part of it in jail on a full-time basis. This occurred in Mr Au’s case, and his visa was mandatorily cancelled. A delegate within the respondent’s Department declined to reinstate the visa in his or her discretion, and Mr Au has sought a review of this refusal.
[1] A Class TY subclass 444 Special Category (Temporary) visa.
THE TRIBUNAL’S TASK
My task is to re-exercise the delegate’s discretion afresh. Hearing the matter on the evidence adduced before me, I must decide whether to set aside the decision under review or affirm it. I have conducted what is known as a de novo hearing of the merits. This type of hearing implies that in re-exercising the discretion afresh, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if this is the correct or preferable decision on the evidence before me. Equally, I may affirm the decision if that is correct or preferable decision on the evidence before me notwithstanding the presence of an error in the delegate’s reasons.
At the hearing before me, Mr Au represented himself; Ms Saunders appeared for the respondent.
STATEMENT OF CONCLUSION
I have decided in this case to affirm the decision under review. I now set out the relevant background facts and my reasons for this conclusion.
BACKGROUND FACTS AND REASONS
Background Facts
Mr Au gave evidence before me, which I largely accept, although Mr Au was unsure of dates. I have based the following account on his evidence to me.
Mr Au is 37 years of age, having been born on 5 July 1983 in New Zealand. He was born in Hastings, a small town on the North Island. He has four sisters, three of whom are older and one younger. One of his older sisters presently lives in Australia. Mr Au’s mother and father were still living together at the beginning of his life, but his father left when he was five years of age. He continued to live in Hastings until the age of 16. He completed his primary school and a couple of years of high school in Hastings before he moved to Australia to join his father. Mr Au’s father had suggested that he come to Australia.
His mother has since remarried, and Mr Au says he gets along well enough with his stepfather although he did not have too much to do with him before departing for Australia. At the time of his departure, Mr Au was finding himself in difficulty, he said. He was not attending school and acting up in bad ways. He said to me that in retrospect he sees that he was unhappy not to have had the benefit of both parents. He said he was getting into trouble in New Zealand and hanging out with a bad circle of acquaintances. Coming to Australia was supposed to be a fresh start for him.
In about 1999 or 2000, Mr Au moved to Rosewood in Queensland, a country town some three hours from Brisbane Airport. He lived there with his father. He attended the local high school, but only for some four months. From Rosewood Mr Au and his father moved to Ipswich. Ipswich was a larger town, only some 30 minutes away. Mr Au attended high school there, but for a couple of months only. He decided to leave school and started working with his father, who was a boner in a meatworks in Dinmore, close to Ipswich. Mr Au said that he found it hard in school and he wanted to work. He began as a trainee meat processor in about 2000 or 2001. He worked five years in the meatworks.
Mr Au’s sister, Ms Helen Rameka, was living with them in their father’s home at this time. Mr Au gets on very well with her. She gave evidence to the Tribunal on Mr Au’s behalf.
Mr Au moved out with his sister to Redbank at some point. He said he felt more comfortable there as he was met not getting on with his father at that time.
So far as his personal life is concerned, he met his first partner, Ms Lillian Dyer, and they moved in together and had a child. That child is now almost 16 years of age. Mr Au said he was happy to have the baby although the pregnancy was unplanned.
Mr Au and Ms Dyer moved back to Mr Au’s father’s home. Mr Au and his father started a painting business together. Mr Au said he was a painter for some 12 years. The business went very well. When their child was about six months old, Mr Au and Ms Dyer moved out of his father’s home again, as it was becoming crowded. Ms Dyer and he began renting a home in Forest Lakes. Forest Lakes was a “big step up”, he said: they had a good home there. When his daughter was about two or three, Mr Au and his partner moved to Logan. There he was closer to rugby venues and his friends, who were all from Logan. His second daughter was born in 2007. Mr Au said he was very happy to have a second child.
At this point, the painting business was running better than ever, Mr Au said. In his evidence to me, he said that his relationships with his partner and father were both “ok” at the time. His third daughter was born in 2012.
At around this time, however, Mr Au said that he had to serve a couple of months in the Brisbane Correctional Centre for the offence of unlicensed driving. This event marked the beginning of a downhill spiral. Mr Au said that he had had his licence suspended because he had failed to pay a number of fines. When he continued to drive and was caught, he was jailed at the Brisbane Correctional Centre.
Mr Au said that his relationship with his partner broke down at around this time, and she moved away while he was in jail. He ended up losing the painting business altogether because his father would not go on with it alone.
When he was released from jail, Mr Au resumed his painting career, but he was working for someone else rather than on his own account. As I understand his evidence, he did reconcile with his partner for some time, but the relationship broke down irretrievably in 2016. He said to me that he has not seen his partner since then. Mr Au also said that since that time, he has only seen his children by his first partner when they have been in the company of his sister. It has now been some one-and-a-half years since he has seen his children. There are no court orders regulating contact, and his former partner will not facilitate one-on-one contact.
Mr Au found a new partner, and a child was born to them in 2018, a son. Mr Au no longer has a relationship with the mother, however, and she has met someone else. Mr Au gave evidence that they had had a very serious argument and he moved out. He did not realise at the time of the argument that she was pregnant, and only learned that fact after moving out. Mr Au said he gets along with this former partner and that appears to be corroborated by Ms Rameka (see her statement in Ex A6).
So far as his work history is concerned, Mr Au has not painted since about 2016; but since that time, he has done some volunteering work (including working with homeless teenagers). His volunteering work lasted some 12 months. Paid work after 2016 has been limited but he has worked intermittently, including in a landscaping business.
It is a tragic feature of Mr Au’s life that after the end of his relationship with his first partner, he stayed with a friend, and at that time he said he began to use methamphetamine or “ice”. Friends from rugby introduced him to this addictive and pernicious drug, he said. He became a regular user. He was asked to leave his friend’s house because he was unable to contribute meaningfully to its upkeep, he said. Thereafter Mr Au became homeless and moved into accommodation provided by a foundation, the Koha Shed. It was there that he assisted teenagers (as I earlier mentioned). His work there is referred to in Ex R2 at p.1.
Fortunately, Mr Au managed to obtain a short-term contract in Townsville to paint hotels, and this earned him a good salary of $1200 per week he said. When the short-term contract of a month or two in Townsville came to an end, Mr Au moved in with his sister as I understand his evidence. He was still using ice at this stage and found it very hard to say “no”, he said. Mr Au said he was using ice to block out memories, particularly those associated with losing contact with the children he had had with his first partner.
Criminal offending
I now turn to consider Mr Au’s criminal history. For the purposes of my decision, I concentrate on the offending from 2018 onwards. Before mid-2018, there had been some three years during which Mr Au did not have any criminal offences recorded against his name. Although there are a number of offences beginning from 2003 onwards, they are, in the scheme of things, relatively minor with the exception of one offence which was committed in December 2001 involving the dangerous operation of a vehicle where a suspended sentence of six months was imposed. This offence involved street-racing, but the offence took place a long time ago now, and I do not attach much significance to it.
In 2018, however, Mr Au committed a series of offences. These are listed at Exhibit R1, pp 32-33. He was sentenced on 3 May 2019 for all these offences in the Ipswich Magistrates Court. Some of these offences concerned the possession of drugs or drug utensils, one involved the unlawful use of a motor vehicle, others involved failing to appear before authorities in accordance with an undertaking and the breach of bail conditions. Mr Au received a range of sentences, the longest being that for the unlawful use of a motor vehicle, where a sentence of six months’ jail was imposed. The sentences were to be served concurrently.
The sentencing Court backdated the commencement of all sentences to 26 December 2018, the day Mr Au was apparently taken into custody. The court immediately released Mr Au on parole. According to the records before me, Mr Au had spent the period from 26 December 2018 to 8 April 2019 in presentence custody, a period of some three months and two weeks. That is a not insignificant period of time.
Within a short time of being released on parole, Mr Au began to reoffend. On two separate occasions in 2019, Mr Au involved himself in the taking and unlawful use of another person’s motor vehicle. He was also found in possession of drug utensils on a separate occasion. He was also guilty of “drug-driving” on 30 September 2019.
Mr Au was sentenced in relation to these offences on 9 April 2020. The two counts of unlawful use of a motor vehicle attracted sentences of 12 months each, to be served concurrently. Mr Au was required to go to jail although the Court indicated that he would be eligible to apply for parole immediately. I have read the sentencing Court’s remarks which were before me at Ex R1, pp 46ff.
In the event, the delegate cancelled Mr Au’s visa on 12 May 2020 as he or she was obliged to do. Mr Au asked to have the cancellation of his visa revoked, but this was declined.
The delegate was required to apply Direction 79 issued under the Act when considering Mr Au’s application. I too must apply the Direction. I now turn to the factors relevant to re-exercising the discretion.
Re-exercising the discretion
In LJTZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356, I set out the background to the Direction and I repeat what I said at paragraphs [24] – [28]:
“24 I now turn to apply Direction 79. The Direction consists of a preamble and Parts A, B, C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision-maker must consider the specific circumstances of the case.
25 The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by “non-citizens”. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk “non-citizens” pose is unacceptable.
26 The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non-citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances even other strong countervailing considerations may be insufficient to justify not cancelling the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.
27 In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations.
28 I turn now to Part C which is the relevant part. There are three primary considerations mentioned in Part C that I must consider; first, protection of the Australian community from criminal or other serious conduct; secondly, the best interests of minor children in Australia; and, thirdly, the expectations of the Australian community.”
Under paragraph 13.1(1), I must have regard to the principle that the government is committed to protecting the Australian community from harm. I take into account this principle. I must also have regard to the nature and seriousness of Mr Au’s conduct to date (para 13.1(2)(a)) and the risks to the Australian community should he commit further offences or engage in other serious conduct (para 13.1(2)(b)).
So far as the nature and seriousness of Mr Au’s conduct to date is concerned, I must have regard to a number of factors listed in subparagraphs (a) to (i). The first three factors are not relevant. I must have regard to the sentence imposed by the courts for a crime, and I do so in this case. Most recently, they involved the imposition of terms of imprisonment of 12 months, which is a reasonably lengthy term and is a serious matter. I must have regard to the frequency of Mr Au’s offending and have regard also to the cumulative effect of repeated offending. I accept that Mr Au has now been involved in the unlawful taking and use of others’ vehicles on three occasions. He has often been found in the possession of drugs or drug utensils (such as pipes).
I note also that some years ago now Mr Au provided false or misleading information to the Department several times on re-entering Australia from New Zealand. He failed to disclose prior criminal convictions on incoming passenger cards; but I do not attach much significance to this misbehaviour.
In considering the risk to the Australian community, I must have regard to the nature of the harm to individuals or the Australian community should the noncitizen engage in further criminal or other serious conduct; and I must have regard to the likelihood of Mr Au engaging in such conduct. I am to have regard to these two factors cumulatively.
The unlawful use of the vehicles, considered solely as a property offence, is harmful to the community and somewhat serious in its own right, but it is clearly not offending of the most serious kind. While Mr Au has been involved in the taking of others’ vehicles, they were not on-sold or damaged or used in the commission of further offences. They appear to have been used by Mr Au in his daily life: their misuse appears to be something of a senseless crime.
Of greater concern to me is the drug-misuse background to this offending. When I asked Mr Au why he got involved in these crimes, he answered that he was using ice at the time and that ice made him feel confident. The vehicles were taken and driven in defiance of the licence disqualification Mr Au was under, and during a time in his life when Mr Au was regularly abusing ice. Mr Au admitted in his evidence that he had ongoing difficulties with ice abuse at the time of his offending.
My particular concern is that if Mr Au were to commit the same crime in the future, he could well injure someone if he drove under the influence of ice. The effects of ice are well known. Driving while under the influence of ice is a dangerous activity. It was apparently the effect of the ice he had taken that caused Mr Au to act in the unlawful way he did in taking the vehicles. As I have said, the crimes appear somewhat pointless.
On the evidence before me, Mr Au had already recently spent some months in jail. He had had a very clear experience of jail, therefore, but he reverted to using ice and to further criminal behaviour very soon after being paroled. Mr Au was a mature adult at the time of the most recent offences.
An accident where a member of the community is seriously injured is within the scope of the foreseeable future risk that I must take into account, I believe. An increased likelihood of an accident would arise if Mr Au were to drive a vehicle while under the influence of ice. That potential harm to the community is one I regard as very serious indeed. I appreciate that Mr Au was not convicted of driving dangerously under the influence of a drug, and so I cannot conclude that Mr Au was ever driving the vehicles in question dangerously. But Mr Au’s regular ice use causes the risk of future injury to members of the public to fall fairly within the range of possible future consequences to which I should have regard, I believe.
I must have regard also to the likelihood of Mr Au reoffending. I cannot say that this likelihood is low on the evidence before me. I bear in mind that Mr Au reoffended quite soon after being released on parole. It is clear that the experience of jail did not compel Mr Au to address his ice misuse. On the evidence before me, I believe there is a real risk that Mr Au will use ice again.
I would note two further factors in this regard. First, there is a psychologist’s, Ms Zipparo’s, report (see Ex R1 at pp 89ff and Ex A3) commissioned on behalf of Mr Au which concludes that the present risk of Mr Au reoffending is “moderate”. I accept her conclusion.
The conclusion was also offered by Ms Zipparo that Mr Au’s future risk of reoffending could change to “low” given certain protective factors and on the proviso that his insight and motivating factors which he articulated at the interview with her remain “driving forces”.
Like Ms Zipparo, I accept that there are factors in play that reduce the risk of Mr Au reoffending. First, I do not underestimate the effect of immigration detention, a factor Ms Zipparo did not refer to. Immigration detention is the immediate precursor to forced removal. The reality of the end of one’s life in Australia becomes starkly obvious in immigration detention.
I accept also Mr Au’s evidence to me that re-establishing personal contact with his children is of great importance to him. Mr Au understands− precisely because he is in immigration detention− that one-on-one contact with his children for the foreseeable future will be very difficult, if not impossible, if he is removed to New Zealand. That is a powerful incentive for him to overcome his use of ice.
Secondly, Mr Au does have the support of his sister, Ms Rameka, who gave evidence on his behalf. Ms Rameka lives in a stable family environment with her partner and children. They are willing to have Mr Au return to live with them, and Ms Rameka stipulated a proviso; namely, that any use of drugs will require Mr Au to leave her home. Having a stable family environment to return to is an important protective factor for a person who is trying to give up drug use. I accept also that Mr Au would commence rehabilitation on his release, and that the support agency “Lives Lived Well” has agreed to be involved in his treatment: see Ex A2. All this reduces the risk of Mr Au reoffending.
Nevertheless, I am concerned by Mr Au’s extensive past use of ice (which he admitted in the hearing) and his emotional problems stemming from his own childhood unhappiness, which he mentioned at the hearing. I refer to Ex A3 at p.3 where Ms Zipparo also refers to these factors. I note that she also referred to Mr Au’s poor emotional coping skills (at p.4).
I am also concerned by a recent credible and, on the face of matters, irrefutable allegation that Mr Au was in possession of the illicit drug, MDMA, on 31 October 2020 while in immigration detention. The incident report at Ex R2, p. 242 leaves little doubt that Mr Au was caught by CCTV placing a sachet of the drug near a drink machine in a common area. That is of real concern to me, because on this day Mr Au was still awaiting the delegate’s decision in respect of his application to have the cancellation of his visa revoked.
I note that the allegation is that Mr Au had possession of the drug. He is not alleged to have consumed it. But his involvement in the illicit possession and placement of the drug is of real concern because Mr Au has revealed himself to be willing to be caught up in an association with illicit drugs. (I should say that I attach far less significance to any alleged misuse in immigration detention of the drug Suboxone, to which Ms Saunders referred. So far as I am aware, Suboxone is a prescribed “blocker” for addiction and provides only a mild pleasurable effect to a person who consumes it.)
In all these circumstances, I do not believe that the risk Mr Au would pose to the Australian community is presently low. His risk of reoffending is intimately linked to the risk of further drug misuse. Whether Mr Au would stay away from drugs on his return to the community is very much an open question at the present time in my opinion. All in all, I approach the re-exercise of the discretion on the basis that that Mr Au’s risk of reoffending is moderate, that is, neither high nor low.
I must have regard to the best interests of minor children in Australia. I accept that Mr Au wishes genuinely to re-establish contact with his four children. His first partner is not open to the idea although it seems that his relationship with his second partner is better than that with his first.
I do take into account, however, as the Direction requires me to do, that the children in question have mothers and, therefore, another parental figure (para 13.2(4)(e)). There has been limited contact between Mr Au and his three daughters in recent times, and no effective contact with the son born to his second partner. So far as his first partner is concerned, Mr Au would need to engage in mediation or invoke court processes to secure access. So far as his son is concerned, I believe the prospects appear to be better, but they are not certain.
I do not exclude, however, the chances of Mr Au securing the right to develop a one-on-one relationship with his children through mediation or a court process. I also make the point expressly that it is of importance for any child to have a functioning relationship with both biological parents if that is at all possible. All in all, the interests of minor children are a factor that counts in Mr Au’s favour.
I take into account as well, but of course to a lesser degree, the positive relationship Mr Au has with his sister’s children. If Mr Au could stay away from drugs, his sister’s children would benefit from a resumed relationship with their uncle. I note Ms Rameka has referred to this factor and to Mr Au contributing financially to their household when he was staying with them: see her statement in Exhibit A6.
I must have regard to the expectations of the Australian community. The Federal Court decision in FYBR v Minister for Home Affairs [2019] FCAFC 185. This decision makes it clear that I am not to evaluate these for myself: they are encapsulated in the Direction itself. I think this factor does count against Mr Au. But as a mitigating factor, I do take into account that Mr Au has lived in Australia for a very considerable period of time now, and that the principle in paragraph 6.3(5) indicates that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a noncitizen who has lived in the Australian community for most of his or her life. I take that mitigating factor into account in Mr Au’s favour.
I must balance up the “other” considerations as well. These are listed in a non-exhaustive list in paragraph 14(1). Of the five listed factors, only two are relevant; namely the strength nature and duration of ties and the extent of impediments if removed. I accept that Mr Au had a solid work history behind him before drugs intervened. He has skills as a meat- processor and as a painter who successfully ran his own business with his father. He had employment for some considerable number of years. I accept the significance of this contribution and to the assistance he has given to teenagers who were homeless when he himself was homeless. I give him credit for that. I accept also that he has mentored an employee, and helped shape him to be a diligent and law-abiding member of the community (see Ex R1, p 103). He has also been a very good employer in the opinion of one of his employees who wrote a reference in respect of him. He was described in fact as a model employer (Ex R1, p.106). Mr Au provided a number of references which I have considered and taken into account, although I have not accepted that Mr Au can be said presently to be a devoted family man since he has been estranged from his first partner for some years now and is separated from his second partner.
I accept that Mr Au himself has a genuine interest in remaining in Australia because of his family ties. I accept that he would be strongly and adversely affected by losing the possibility of re-establishing one-on-one personal contact with his children. He has been close to his sister and her family and he would lose that connection as well. I think these ties are very important to him.
I believe that there will be some considerable impediments for Mr Au on his return to New Zealand. He has not lived there for a long time. He has no established social circle. Although he has skills that are marketable in New Zealand, I believe he would find it difficult to find work, initially at least, given his criminal record. All these matters are in Mr Au’s favour.
He does have family in New Zealand; namely his mother and two sisters. From his sisters’ joint letter of reference (part of Ex A6) it is clear that they have a good relationship. From that letter I infer that the sisters would do what they could to assist him to reintegrate into New Zealand society.
Against that, however, I note that Mr Au will have to contend with the risk of relapse into ice misuse. This is a risk he needs urgently to address. If deported, he would have to approach his rehabilitation in New Zealand without the support of his sister in Australia, to whom he is very close. I do take into account in Mr Au’s favour that he has a legitimate interest in maximising his chances of successful drug rehabilitation. I believe these chances are greater in Australia than in New Zealand at the present time because of the presence of a sister in Australia to whom he is close and because of her overall familiarity with his problems. It is, of course, of great importance that there be family support, if possible, when drug rehabilitation is being undertaken. Accordingly, I take into account the fact that Mr Au would benefit from staying in Australia to commence his rehabilitation here. Removal to New Zealand would, I believe, be a new low point for Mr Au, and he may struggle to stay away from ice misuse. This counts in Mr Au’s favour.
I also take into account in Mr Au’s favour that he had job prospects in Australia with CK Containers Pty Ltd as of 20 February 2019: see Ex A6. I cannot say that these prospects still definitely exist with that particular employer but I am prepared to assume that they may well continue to exist.
Weighing up the discretion
Weighing up the discretion in this case has been particularly difficult. I note that I am to give, generally speaking, more weight to primary considerations than other considerations under the Direction: see para 8(4). Of particular concern to me has been Mr Au’s past misuse of the drug ice. This drug lies at the root of Mr Au’s criminal offending. Mr Au was candid with me in linking the most recent offences to his misuse of the drug. And I note that he reported the same link to the person who conducted the “benchmark assessment” in the criminal justice system in Queensland in 2019: Ex R2 at p 43.
As I have said, what is of particular concern to me is the risk Mr Au would pose to the community if he drove vehicles while affected by ice (whether those vehicles are driven with or without permission). I regard that risk as strongly antisocial, and one that carries a risk of direct physical injury to the community.
I bear in mind that in Mr Au’s case, there is now an established history of offending. Even though Mr Au was disqualified from driving and on parole, his use of ice led him to be involved in taking others’ vehicles again: as I have said, a seemingly pointless crime. That crime is in and of itself antisocial, of course; but the possibility of his driving whilst under the influence of ice poses an additional and more serious risk to the welfare of Australian community members. I bear in mind that even jail has not proven a sufficient deterrent for Mr Au in this regard.
I accept that the interests of minor children are a primary factor that I should take into account and these count in favour of Mr Au as I have said. In my evaluation, however, this factor and the other factors in Mr Au’s favour to which I have referred do not outweigh the negative factors of the nature and seriousness of his conduct to date and the future risk to the Australian community. I must also take into account the expectations of the Australian community in this regard.
I accept that this decision implies that Mr Au and his children will lose the possibility of one-on-one contact with one another in Australia, and that Mr Au faces the additional burden of seeking to deal with his ice misuse in New Zealand (as opposed to Australia) when I believe he has a greater chance of success in Australia. One of the deeply unfortunate consequences of removal from Australia is the fracturing of personal relationships within families. These relationships often sustain an individual and make life meaningful. Unfortunately, this is one such case entailing a fracturing of familial ties.
On balance, however, I have decided the correct or preferable decision on the evidence before me is to affirm the decision under review.
67. I certify that the preceding sixty six (66) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.
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Administrative Assistant LegalDated: 4 March 2021
Date of hearing: 16 and 25 February 2021 Advocate for the Applicant: Self-represented Advocate for the Respondent: Ms Charlotte Saunders, Minter Ellison
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