Barber and Minister for Home Affairs (Migration)

Barber and Minister for Home Affairs (Migration) [2019] AATA 2945 (23 August 2019)
Division:GENERAL DIVISION
File Number(s): 2018/5229
Re:Lee William Barber
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:23 August 2019
Place:Sydney

The Tribunal affirms the decision under review.
...........................[sgd] ........................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – mandatory visa cancellation – citizen of New Zealand – Absorbed Person visa – multiple criminal convictions between 1987 and 2017 – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth) ss 4, 499, 500, 501, 501CA
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Amendment (Character Cancellation Consequential Provisions) Act 2017 (Cth)
Migration Legislation Amendment Act 1994 (Cth)
Migration Regulations 1994 (Cth) r 2.52
Returning Offenders (Management and Information) Act 2015 (NZ)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Barber and Minister for Home Affairs [2018] AATA 4304
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FYBR v Minister for Home Affairs [2019] FCA 500
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 144 ALR 567
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Sadruga v Minister for Home Affairs [2019] FCA 1078
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
ZNBG and Minister for Home Affairs [2019] AATA 1872
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
23 August 2019
INTRODUCTION

The applicant, Mr Lee Barber, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Absorbed Person visa (the “visa”).[1]
[1] Exhibit R1, 5-23.
The hearing was held in Sydney on 13 August 2019. Mr Barber appeared in person and was self-represented. The respondent was represented by Mr Cuthbert of Clayton Utz.
For the reasons that follow, the Tribunal affirms the decision under review.
BACKGROUND
Mr Barber is a 51 year-old citizen of New Zealand who first arrived in Australia in June 1978 with his parents and two sisters.[2] He attended school here until completion of Year 10 and then worked for some years as a machinist. Mr Barber undertook a carpentry apprenticeship from 1989 to 1993[3] and subsequently worked in that trade.[4] He has lived in Australia for approximately 41 years, has never returned to New Zealand, and has not obtained Australian citizenship.
[2] Ibid, 108; 231.
[3] Ibid, 40; 52; 116.
[4] Ibid, 132.
Mr Barber’s life in Australia has not been trouble-free. His frequent criminal offences since 1987 have brought him to the attention of police, the courts and immigration authorities. His offending commenced when he was a teenager and has continued for over 30 years. He has been convicted of more than 100 separate offences and spent approximately 13 of the last 26 years on remand or serving sentences of imprisonment.[5] Mr Barber was formally warned by immigration authorities in 2008 and 2011 about the potentially dire consequences for his ability to remain in Australia if he continued to reoffend.[6]
[5] Ibid, 97-100.
[6] Ibid, 232-237.
Following Mr Barber’s most recent convictions on 1 December 2017,[7] his visa was mandatorily cancelled on 14 February 2018.[8] That is because his circumstances fell within the cancellation criteria provided by s 501(3A) of the Act. At the time of visa cancellation Mr Barber was serving a full time sentence of imprisonment.[9]
[7] Ibid, 24.
[8] Ibid, 239-244; 320-323. As a New Zealand citizen who met the qualifying criterion, Mr Barber’s visa was granted to him by operation of law following introduction of the Migration Legislation Amendment Act 1994 (Cth), and pursuant to s 34 of the Act.
[9] Ibid, 97.
Mr Barber was invited to make representations to have the decision revoked and did so on 1 March 2018.[10] After considering his representations a delegate of the Minister decided on 31 August 2018 not to revoke the original cancellation decision.[11] Mr Barber acknowledged receipt of this advice on 6 September 2018.[12]
[10] Ibid, 102-105.
[11] Ibid, 5-23.
[12] Ibid, 375.
On 11 September 2018 Mr Barber asked the Tribunal to revoke the cancellation of his visa, stating:
‘I don’t believe enough weight was placed on the man I am today. The decision was based on my criminal past when my current circumstances are a lot different.’[13]
[13] Ibid, 4.
On 20 November 2018 the Tribunal, differently constituted, affirmed the visa cancellation decision.[14] Mr Barber appealed to the Federal Court of Australia, which set aside the Tribunal’s decision on 18 April 2019,[15] giving rise to these proceedings.
[14] Barber and Minister for Home Affairs [2018] AATA 4304.
[15] FCA [NSD124/2019] dated 18 April 2019.
STATUTORY FRAMEWORK
Section 500(1)(ba) of the Act is the source of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
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 by virtue of having a substantial criminal record and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
…
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may 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 that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[16]
[16] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA,
The principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR BARBER PASS THE CHARACTER TEST?
Mr Barber has been sentenced to terms of imprisonment of 12 months or more on several occasions, including most recently on 1 December 2017. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Barber does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory cancellation of Mr Barber’s visa should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in Viane:[17]
‘There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.’
[17] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; 162 ALD 13 per Colvin J at [64].
EVIDENCE BEFORE THE TRIBUNAL
“G-documents” numbering 406 pages were taken into evidence,[18] as were:
(a)an email from Mr Barber dated 12 July 2019, which he adopted as his statement;[19]
(b)a letter from Mr Barber’s current partner dated 6 November 2018;[20]
(c)a document titled ‘Returning offender’s order,’ which had been downloaded from the New Zealand Department of Corrections website;’[21] and
(d)oral evidence from Mr Barber and both of his parents.
[18] Exhibit R1.
[19] Exhibit A1.
[20] Exhibit A2.
[21] Exhibit R2, < Police Certificate and Sentencing Remarks
Mr Barber’s National Police Certificate is attached to these reasons. It discloses that his early offending between 1987 and 1994 was dealt with by the courts through fines, community service, sureties and good behaviour periods. He was sentenced to his first term of imprisonment (six months) on 4 October 1995, and received subsequent sentences of imprisonment in 1996, 1997, 1998, 2000, 2003, 2004, 2005, 2007, 2010, and 2017.
Formal warnings
Mr Barber recalls receiving two previous warnings from immigration authorities as follows:
(a)2008 Formal Warning. A letter dated 8 April 2008 was sent to Mr Barber by the then Department of Immigration and Citizenship (“Department”), which stated:[22]
[22] Exhibit R1, 232-235.
‘On 25 January 2008, the Department of Immigration and Citizenship notified your client that the visa which authorises his continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your client’s visa on character grounds at this time…However, the delegate decided that a formal warning should be given to your client. Accordingly, please ensure that your client is made aware of the following:
Visa refusal or cancellation may be reconsidered if fresh information comes to notice or if your client incurs a liability on new grounds. Disregard of this warning will weigh heavily against your client if their case is reconsidered.
…’
(emphasis in original)
(b)Mr Barber acknowledged receipt of the above letter on 30 April 2008.[23]
(c)2011 Formal Warning. The 2008 warning was to no avail. Mr Barber continued to reoffend and was serving a further sentence of imprisonment when the Department sent him a second letter in 2011 in the following terms:[24]
‘On 16 February 2011, the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion…However, the delegate decided that you are to be given the following formal warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
…’
(emphasis in original)
[23] Ibid, 234.
[24] Ibid, 236-238.
Sentencing remarks

The Tribunal notes sentencing remarks in evidence that reflect on the nature and seriousness of Mr Barber’s offending, his rehabilitative prospects, and risk of recidivism:
(a)In sentencing Mr Barber on 19 June 2003, Judge Urquhart of the District Court of NSW described an incident during which Mr Barber had acted violently toward police. His Honour noted that on 4 October 2001 Mr Barber:
‘…reached into the front right-hand pocket of his pants and removed a long silver object. In a loud voice he shouted “I’ll fucking show youse”. The prisoner then ran towards the police with his right arm extended, holding the silver object in his right hand. He was seen by police to make a thrusting motion with the silver object in their direction. At that stage, police identified themselves by calling out “Police”, and told the prisoner to get down….when he was about five metres distant from them, the police fearing for their safety, released a large burst of OC spray in the direction of the prisoner…The prisoner suddenly stopped running towards the police, turned off and headed north on Darlinghurst Road…the police stopped him by tackling him and bringing him down…When the silver object was removed from the prisoner’s right hand, it was seen by police to be a Stanley brand screwdriver which was 20 centimetres in length…
I pause at this stage to note that in respect of that charge, the prisoner was released to bail. It was whilst on bail in respect of that matter, that all of the subsequent offences were committed by him.
…
The prisoner…readily conceded he has been the user of heroin and cocaine [which] commenced when he was about twenty-seven years of age.
His Honour further noted that Mr Barber was:
‘…no stranger to the criminal Courts…[with]…a record which is replete with offences of various types. Break enter and steal, possession of drugs, self-administration of drugs, goods in custody, obtain money by deception, stealing, and an escape from lawful custody. I do not propose to detail all of those offences, for it is sufficient for the purposes of these reasons to note that he has a bad record.’[25]
[25] Ibid, 40.
(emphasis added)
His Honour also noted that, on his own evidence, Mr Barber’s efforts to rehabilitate and remain abstinent from illicit drugs had been unsuccessful.[26] That said, His Honour accepted the sincerity of Mr Barber’s expressions of remorse, founded on a number of protective factors that included the ‘motivation of a new relationship, the wish to return to his daughter, the support of his parents, his knowledge that he needs external agency support upon his release, and his age are such that the court can accept…this is a second turning point in his life.’[27]
[26] Ibid, 42-43.
[27] Ibid, 46.
(b)Following an appeal against the severity of the June 2003 sentence, Mr Barber was re-sentenced to a shorter term. The NSW Court of Appeal noted:
‘The applicant had an appalling record, but His Honour…made favourable findings of a genuine desire to avoid drug use in the future and rehabilitating himself, which His Honour, surprisingly in my view, considered had some prospects of success.’[28]
[28] Ibid, 54.
(emphasis added)
(c)On 10 February 2010, Magistrate Milledge reflected on the persistent nature of Mr Barber’s offending:
‘I said on the last occasion that I would try and find special circumstances with regards to parole, but I read the pre sentence report and whilst it is a well prepared report, it does not really say anything that gives me any hope that this time on your release from prison would be any different to all the other times that you have been released from prison, and have been supervised quite strictly on parole, in the hope of doing something about your drug addiction.
There comes a time when the court have got to say to people, “no more”, that your offending has made a lot of people’s lives miserable. You have broken into their homes, you have invaded their personal space and you have stolen from them…now it has come to a time in your life where what you have done far outweighs any subjective features of you as an individual, because you have made too many people’s lives miserable.[29]
(emphasis added)
(d)On 30 March 2010, Chief Judge Blanch of the NSW District Court observed that Mr Barber’s drug addiction had ‘caused all of these problems and that might in some circumstances lead to a further reduction in his non-parole period but bearing in mind his criminal history I do not believe it should.’[30]
(e)On 1 December 2017, at the Waverley Magistrates’ Court, Magistrate Stapleton noted that Mr Barber was twice found over a two-day period to have blood alcohol readings above the legal limit (.107 and .154).[31] He was regarded as being ‘a danger to all other road users,’having committed ‘a very serious offence of negligent driving,’ where it was only the ‘skill of the other driver’ that ‘narrowly avoided a head-on collision’ when Mr Barber ‘lost control of his car.’[32] Mr Barber was also noted to drive off after this incident and failed to give particulars to the other driver. In relation to rehabilitation, Her Honour noted that Mr Barber:
‘…did enter residential rehab which is a point in his favour, but he only stayed six or eight weeks before he formed the view that he was well enough to discharge himself. Of course these programmes are a complete programme and it is not regarded as a matter for the person participating in the programme to decide whether they have got strategies in place which will assist them in maintaining sobriety in the community. It was not his job to discharge himself.
So at this point in time when I assess his capacity for rehabilitation I have got to say I think his capacity for rehabilitation is limited and that is important because it is a relevant factor when I consider how long a custodial sentence I should impose.’[33]
(emphasis added)
[29] Ibid, 68.
[30] Ibid, 71-72.
[31] Ibid, 79 at [3]; [39].
[32] Ibid, [23]-[29].
[33] Ibid, 80.
Medical evidence
The Tribunal notes two undated medical records in evidence from the International Health and Medical Services (IHMS),[34] stating that appointments had been made for Mr Barber to speak with an onsite psychologist and psychiatrist. No evidence relating to Mr Barber’s attendance at those appointments or any outcomes of consultations with mental health professionals were before the Tribunal. During the hearing, Mr Barber’s unchallenged evidence was that he had not received these two appointment slips, which the Tribunal accepts. No weight is placed on these records.
[34] Ibid, 225-226.
The Tribunal notes Mr Barber’s documentary evidence that the only medication he took at the time of completing his Personal Circumstances Form (“PCF”) in February 2018 was a ‘Blood Presser (sic) Pill.’[35] Mr Barber confirmed during his oral evidence this is the only medication he currently takes. Mr Barber also referred to his previous participation ‘on and off’ in a Suboxone Program between 2006 and 2015 to treat his opioid addiction.
[35] Ibid, 117.
Dr Ramesh Pillai
The Tribunal notes a letter from general practitioner Dr Ramesh Pillai dated 11 April 2018.[36] Dr Pillai states that Mr Barber’s parents presented in a ‘depressed state,’ have been ‘battling multiple medical issues,’ and ‘have been devastated by recent developments leading to possible deportation of their son.’ Dr Pillai states that Mr Barber’s parents fear repatriation would make their son’s life ‘spiral out of control’ because he has been ‘struggling to get his life back in order’ and does not have any relatives to rely upon in New Zealand. Dr Pillai did not appear at the hearing so his perspectives could not be tested under cross-examination.
[36] Ibid, 138.
Dr Emad Rizkalla
The Tribunal notes an undated letter from general practitioner Dr E. Rizkalla, who is from the same practice as Dr Pillai, and whose letter is in substantially similar terms to that of Dr Pillai.[37] Dr Rizkalla additionally refers to Mr Barber’s father as having ‘low sight in L eye’ and as having ‘multiple fall (sic) where theye (sic) have no other relatives except his wife…’ The reference to ‘no other relatives’ is inconsistent with other evidence before the Tribunal, most notably the existence of Mr Barber’s two sisters and other relatives.[38] Dr Rizkalla did not appear at the hearing, so his perspectives could not be tested under cross-examination.
[37] Ibid, 224.
[38] Ibid, 113.
Mr Barber’s evidence
The Tribunal notes Mr Barber’s written evidence,[39] much of which he returned to in oral submissions. A recurring theme is Mr Barber’s remorse for his offending, which he attributed in significant part to a longstanding drug dependency. Mr Barber claimed he has now overcome that dependency after realising he ‘couldn’t keep living like that.’ He claimed to be aware of and able to overcome the ‘triggers’ to his drug-taking, which had previously led him into ‘dark places.’ Mr Barber said that while he had previously put himself and his addiction first, he now put others before himself.
[39] Exhibit A1; Exhibit R1, 4; 102-134; 144-148; 210-211; 217-220; 223.
Mr Barber said he was introduced to drugs by his first wife and, notwithstanding rehabilitative efforts, he had struggled to avoid relapses. He described immigration detention during the last two years as an ‘eye opener,’ which had finally made him understand what he stands to lose if repatriated to New Zealand. That includes access to the practical and emotional support he derives from his family, and the prospect of a more meaningful relationship with his two biological children in the future.
Mr Barber said he thought of himself as an Australian and a ‘good man.’ Notwithstanding what he described as a ‘colourful history,’ Mr Barber said he was not the ‘dangerous crook’ portrayed in his National Police Certificate. He referred to the positive contributions he had made through work as a tradesman and believes he can make a valued contribution in the future. Mr Barber acknowledged ‘some bad decisions’ in the past, but expressed a renewed determination to live a law-abiding life. He said that results from greater maturity and insight gained during immigration detention. He referred to himself as a ‘role model’ in immigration detention, who is perceived as a ‘statesman’ by other detainees, who he assisted to stay out of trouble. Mr Barber referred to an invitation to attend a barbecue in July 2018 for his ‘positive, cooperative and compliant behaviour,’[40] as evidence of the regard he is now held in by immigration authorities.
[40] Exhibit R1, 406.
Mr Barber claimed that at 51 years of age he is now more capable of resisting any further relapse into drug use. He referred to a period between 2011 and 2016 where he was not imprisoned. In response to questions, Mr Barber agreed he was convicted of criminal offences during this period, but distinguished these years by reference to the non-custodial penalties he was awarded. He claimed that these years were comparatively better in a conduct sense than other periods when he was regularly imprisoned. When asked about the fact that he nevertheless reoffended and was convicted of multiple offences in December 2017, Mr Barber explained:
‘Yeah but there’s a gap where I had changed my life, but being a man with an addictive personality, relapsing is a possibility.
I hadn’t been in jail for a significant period of time…I got done for low-range PCA after 30 years without a licence…I got a bit full of myself – a bit cocky. But I had no intention of falling back into drug addiction. I didn’t realise drug addiction involved alcohol as well.’
Mr Barber was questioned about five relationships during his life, which feature prominently in the evidence as contextually-relevant to his offending. These relationships can be summarised as follows:
(a)Partner 1. In his oral evidence Mr Barber said he met Partner 1 in 1990 and they married in early 1991. He claims they had a daughter in June 1991, separated in 1995, and divorced a few years later. The Tribunal notes, however, an unsigned 1996 affidavit from Mr Barber,[41] which was submitted by his parents,[42] in which it refers to different dates for his relationship with Partner 1 and the birth of his daughter. This document states Mr Barber married Partner 1 on 27 October 1990, they had a child in July 1991, and separated in September 1992. In the absence of more reliable documentary evidence such as a marriage certificate, birth certificate, divorce papers, or other evidence from Partner 1 or Mr Barber’s daughter, the Tribunal is unable to make reliable findings about these dates. The Tribunal accepts, however, that Mr Barber was in a relationship with Partner 1, that they married, had a daughter, and after the relationship ended, a custody dispute ensued between Mr Barber’s parents and Partner 1.[43]
[41] Ibid, 144-148.
[42] Ibid, 139.
[43] Ibid, 139-172.
The Tribunal is satisfied that Mr Barber’s former wife gained sole custody of their daughter in 1995,[44] with formal orders granted by the Family Court in February 1997.[45] The Tribunal is also satisfied that Mr Barber has no continuing relationship with Partner 1 or his daughter, who he claimed was currently 30 years of age. The Tribunal finds on the available evidence, however, that she is more probably 28 years of age.[46] Mr Barber said the relationship with his daughter had been ‘rough at times,’ and she was ‘a little bit upset’ that he had been absent from her life. He claims to have last communicated with his daughter in 2008 and in his last tax return in 2016 paid $1,500 in child support, which was the ‘last bill [he] had to pay’ in respect of his daughter. The Tribunal notes his daughter would have been 25 years of age in 2016. There was no corroborating evidence before the Tribunal regarding any child support orders or payments and Mr Barber stated he had no documents to support his claims;
[44] Ibid, 42.
[45] Ibid, 173-174
[46] Ibid, 113.
(b)Partner 2. Mr Barber said he met Partner 2 in 2001 and they lived for a period as a de facto couple. He submits in his written evidence that they had a son in April 2002,[47] but claimed at the hearing that his son is currently 19 years of age. That oral submission is factually inconsistent with his documentary evidence, given that someone born in April 2002 would currently be 17 years of age. The Tribunal notes correspondence in evidence from a solicitor acting for Mr Barber in September 2008, in which Mr Barber seeks contact with his son from the child’s mother. The letter states his son was born on 23 April 2000,[48] which would make Mr Barber’s son currently 19 years of age as he stated in his oral evidence. In the absence of any reliable evidence such as a birth certificate, however, the Tribunal will act on the premise that Mr Barber’s son is currently 17 years of age and does not turn 18 for approximately nine months. He is therefore a minor child whose interests are relevantly considered under the primary consideration ‘Best interests of minor children affected by the decision.’
Mr Barber states in his February 2018 PCF:
‘My son has a step father, he has always been informed about me…I am now wrighting (sic) as I am told he would love to meet his biological father.’[49]
In his oral evidence, Mr Barber stated that he and Partner 2 broke up prior to the birth of their son and although he saw the child soon after birth, he has had no further contact since. Mr Barber submits that he and Partner 2 have remained on speaking terms and he last communicated with her in approximately April 2018. Mr Barber submits that because his son has a step-father, he has not sought to interfere in or disrupt his son’s life, claiming ‘[son - name redacted] will find me when he’s ready, just like [daughter – name redacted] will.’ Mr Barber opined that his son was ‘pretty resentful’ that Mr Barber had not been in his life, but this may change in time. If repatriated to New Zealand, Mr Barber submits he may never see his son again;
(c)Partner 3. Mr Barber said he met Partner 3 after release from prison in 2011 and married her in December 2012. He states there are no children from this relationship, which broke down in April 2016. Mr Barber stated in his oral evidence: ‘We’ll be filing for divorce’;
(d)Partner 4. Mr Barber said he knew Partner 4 from ‘around the beach’ before their relationship ‘escalated in 2017.’ They lived together from January to March 2017 before the relationship ended in March 2017 in tragic circumstances.[50] Mr Barber stated during his oral evidence that he ‘started drinking a bit heavier’ after this relationship ended. In response to questions from the Tribunal about references in the evidence to Mr Barber ‘overdosing’ during this period, Mr Barber submitted:
‘Only three times I did it….When you’re on alcohol and touch other substances, you’re not thinking clearly. I used narcotics that resulted in hospitalisation…It was a misjudgement caused by alcohol.’
When asked to elaborate on these overdoses, Mr Barber explained that the first overdose resulted from drinking methadone, and the following two resulted from ‘snorting heroin.’ He said the three overdoses happened over three consecutive weeks and he had not touched drugs since.
(e)Partner 5. The Tribunal notes a letter in evidence dated November 2018 from a woman claiming to be Mr Barber’s current partner (Partner 5).[51] During his oral evidence, Mr Barber said he talked to Partner 5 frequently by telephone and they had been in ‘a bit of a dispute’ in recent weeks. He had asked Partner 5 not to come to the hearing. Mr Barber submits that Partner 5 has a 10-year old daughter who ‘was in DOCS’ for some years and Partner 5 had ‘only recently got her back.’ When asked if he played any parental role in respect of that child, Mr Barber responded: ‘she’s not my daughter and I don’t claim to be her father.’ He said he was only the child’s ‘friend…if she needs someone to talk to….’ Mr Barber’s evidence about the status of his relationship with Partner 5 during the hearing was contradictory. He variously stated:
‘we’re in a relationship…I’m scared to get too close, that’s why we broke up…I’ve taken on relationships that have destroyed me, so I’ve had to get [Partner 5] to take a step back…Considering we’ve never slept together, it’s been going on since I’ve been in detention…I’ve just put a hold on it…I pushed her away the last four weeks…I don’t need any excess pressure, I can’t handle pressure…I’ve just had to slow it down…’
[47] Ibid 111.
[48] Ibid, 176.
[49] Ibid, 112.
[50] Ibid, 212.
[51] Exhibit A2.
Mr Barber reflected generally on his romantic relationships in the following way: ‘In some relationships men hurt women. In my relationships the women hurt the man…I’ve always put girls first and that’s fucked up my life. I’m going to put myself first…I don’t know if I want to take the risk anymore.’
When taken through his criminal history, Mr Barber agreed he had faced court on approximately 38 separate occasions during the last 30 years, including for some violent offences and many others relating to dishonesty, drugs, and traffic or driving offences. Mr Barber agreed that some of his offending was serious. When taken through the sentencing remarks and references to what appeared to be the court’s diminishing patience at his persistent offending, Mr Barber said: ‘I guess they were waiting for me to see the light.’
When asked about the two formal warnings from immigration authorities in 2008 and 2011, Mr Barber stated that as an addict he ‘didn’t really care too much about whatever document was put in front of [him]’ and he ‘wasn’t concerned with anything in those days.’ When asked if he agreed with the proposition that staying in Australia was a right and not a privilege, Mr Barber responded: ‘I thought I was Australian.’ When referred to the contents of the two immigration warnings referring to his status as a visa holder and not a citizen, Mr Barber submitted: ‘when you’re addicted to drugs those things are furthest from your mind.’ When referred to his signed acknowledgement in 2008 that any further offending could affect his ability to remain in Australia, Mr Barber responded: ‘I’ve been affected in a massive way.’

Mr Barber agreed with the proposition that non-citizens should obey Australian laws and that members of the community should have a right to feel safe in their homes. When asked in looking back over his offending during the last 30 years whether he considered members of the Australian community should have felt safe in their homes, Mr Barber responded:
‘Yes, but you were supposed to keep me safe as well. I didn’t bring drugs into the country, I’m just the young man who picked them up…I thought the Australian government would keep me safe…I just wish I had a little bit more help in the early stages – a little bit more awareness. I fell through the cracks.’
When it was put to Mr Barber that most if not all of his rehabilitation was pursuant to orders of the court, including prolonged placement on a Suboxone Program and residential stays at rehabilitation facilities, he responded:
‘Drug addiction is a very cunning addiction. The individual has to want to stop themselves and in the past I haven’t because I liked it too much.’
When asked about his parents’ evidence that ‘he was in and out of Gaol so much he said it kept him safe he needed to be there…,’[52] Mr Barber agreed that was accurate while he was using drugs. During those times he did not ‘feel safe in the community…I’ve died numerous times and been brought back to life by paramedics.’ He said that during the height of his drug taking, prison was the ‘safest place’ to ‘reflect and gather [his] thoughts.’
[52] Exhibit R1, 142.
Mr Barber agreed he had been given ‘lots of chances’ to rehabilitate himself and change his behaviour prior to entering immigration detention in 2017, where he claims to have reached a definitive turning point and renewed determination to remain law-abiding. He now realised that he has a ‘disease,’ referring on a number of occasions to his ‘addictive personality,’ stating: ‘if it’s not with alcohol and drugs, its surfing or sports.’ Mr Barber stated on a number of occasions that he did not cope with stress well, but now acknowledged his addiction and was no longer a ‘practicing addict.’ He claimed that he had ‘come through the most serious stage’ of his ‘drug addiction’ and was preparing himself for the ‘next 50 years’ of his life. When asked about a three-week period in 2017 where he overdosed on three occasions on methadone and heroin, Mr Barber replied:
‘I did have three relapses after [Partner 4] passed away. I bumped into the wrong people. They said they had it and I took it and it nearly killed me. It was very unlucky that I took it…I don’t have the appetite for it anymore.’
Mr Barber explained that ‘with drug addiction you can have relapse after relapse after relapse,’ because it was ‘not an easy fix’ and he had been required to ‘put a lot of time into fighting a demon’ he could not see. When pressed about what appeared to be a lack of commitment to previous rehabilitation attempts, Mr Barber responded:
‘It doesn’t matter how many times you go into rehab – it’s up to the individual when you come out of the dark cloud and into the sunlight…I can’t touch drugs or alcohol for the rest of my life. I’ve now made my choice to stay off drugs and alcohol.’
Mr Barber agreed he had not been at liberty in the community since achieving his claimed rehabilitative progress. He also agreed there was no evidence to corroborate his claims about rehabilitation or risk of recidivism. He referred to being able to access ‘a lot of support’ if he needed it, including from his family. When pressed about his risk of recidivism, Mr Barber stated:
‘But if I was to relapse, which is a possibility, I have the resources and knowledge to respond…before I go down that path or if I go down that path, I have to take a step back and consider what the implications are…Anyone that’s an addict is a chance of relapsing – that’s the nature of relapsing.’
Mr Barber rejected the proposition that any relapse into drug use would also result in reoffending: ‘No, I wouldn’t let it happen, I’d seek help straight away.’ When it was put to Mr Barber that the 2017 sentencing remarks criticised his decision to end his residential rehabilitation stay early,[53] Mr Barber responded: ‘I went into rehab for six to eight weeks. My employer asked me to come back to work, so I ended up going back to work.’ There is no corroborating evidence before the Tribunal about Mr Barber being employed during this period or any request from an employer that may have initiated his self-discharge from the rehabilitation program.
[53] Ibid, 80 [32]-[43].
When asked about the family members he had listed in his PCF,[54] Mr Barber said he was particularly grateful for the continuing support of his parents and youngest sister, all of whom needed him more than ever. He characterised his relationship with an older sister as more distant, because ‘she’s scared she’s going to lose me to an overdose’ and was ‘upset with me for being an addict.’ He said that he and his older sister ‘found it hard to talk to one another.’ He had not had much to do with the uncle, aunt, cousin and nephew referred to in his PCF since his ‘relapse’ in 2017. Mr Barber said his aspirations for the future included returning to work as a carpenter and providing for himself and his family.
[54] Ibid, 113.
In relation to possible repatriation to New Zealand, Mr Barber expressed concerns that he may not be able to access health support in New Zealand. When asked if he thought the health system in New Zealand may be comparable to that in Australia, he responded: ‘I wouldn’t know – I’ve never been there.’ Mr Barber submitted in response to questions about his work intentions that he could easily secure work and had been ‘talking to people in New Zealand.’ He referred to a telephone conversation with a business owner in Auckland, but was reluctant to relocate there because he wanted a ‘fresh start.’ He explained that many former prison inmates and immigration detainees he knew were from Auckland. Mr Barber also said he preferred being somewhere where he could pursue his lifelong passion for surfing.
Evidence of Mr Barber’s parents
The Tribunal notes a handwritten letter by Mr Barber’s mother on behalf of both parents dated 24 May 2018.[55] His parents link Mr Barber’s drug dependency and offending to issues arising from previous romantic relationships. These include a protracted custody dispute with Partner 1[56] and the tragic death of Partner 4 in 2017.[57] The Tribunal found the evidence of Mr Barber’s parents to be genuine and heartfelt. Their submissions can be summarised as follows:
(a)They love and support their son and want him to remain in Australia with them;
(b)Mr Barber’s choices with women ‘weren’t good.’ He was taken advantage of and had gone ‘downhill’ after a number of these relationships, including relapses into alcohol and substance abuse;
(c)Mr Barber’s parents had seen positive changes in him during the last two years, giving them cause for optimism. Mr Barber’s father stated: ‘He’s told us that he helps other people to do things to keep them occupied.’ Mr Barber’s mother stated: ‘When I talk to him, if he hasn’t learned now, he never will;’
(d)Repatriating Mr Barber to New Zealand would be a ‘disaster’ because he has no support to draw on. Mr Barber’s mother said she had a sister in New Zealand who was in residential aged care and could not assist Mr Barber; and
(e)While they could visit Mr Barber in New Zealand if he were repatriated, Mr Barber’s mother said she was carer for her husband and they both had deteriorating health issues, so travel to New Zealand may be problematic.
[55] Ibid, 142-143
[56] Ibid, 144-211.
[57] Ibid, 213-214.
Evidence of Mr Barber’s sister
The Tribunal notes a letter from Mr Barber’s sister dated 23 August 2018.[58] She refers to the family’s migration from New Zealand when Mr Barber was five years old and that ‘the only life he knows is in Australia.’ She states Mr Barber has experienced:
‘…grief issues and PTSD due to witnessing a number of deaths. Unfortunately he has not had any psychiatric assessment or counselling to deal with these traumas. Currently, he is in a detention centre where he is getting some mental health assistance which he is finding beneficial.’
[58] Ibid, 230.
Mr Barber’s sister expresses a concern that if repatriated to New Zealand ‘there is a high possibility he will struggle and not settle into the community.’ She states that their family in Australia is prepared to support Mr Barber ‘in every way possible’ and that he is welcome to reside with her if released. She claims to have made enquiries at ‘two rehabs’ prepared to accommodate Mr Barber for ‘10 months’ and to do ‘follow up with him.’ Mr Barber’s sister submits that Mr Barber is ‘now in his fifties and expressed a strong desire to turn his life around.’ Mr Barber’s sister did not appear at the hearing and her perspectives and undertakings could not be tested through cross-examination. That said, the Tribunal accepts Mr Barber’s parents and sister are prepared to support if he were to remain in Australia, as they have done consistently in the past.
Evidence of Partner 5
Partner 5 makes a number of submissions in her letter that are inconsistent with other evidence before the Tribunal. That includes claims that Mr Barber has ‘always worked in Australia after leaving school as a carpenter,’ that they have ‘a very strong, healthy…relationship,’ that Mr Barber ‘is an excellent father of his two children’ and ‘will make an outstanding contribution toward the upbringing of his children…’ The submissions about Mr Barber’s work history, their romantic relationship, and Mr Barber’s parental role are plainly at odds with the available evidence. The Tribunal places little weight on the evidence of Partner 5.
Other evidence
Letter from Dr Mike Freelander MP, Federal Member for Macarthur. The Tribunal notes a letter from Dr Freelander to the then Assistant Minister of Home Affairs on behalf of Mr Barber’s parents, who are his constituents.[59] Dr Freelander states:
‘…
Lee Barber is currently incarcerated; however his parents inform me that he has a great chance for rehabilitation, and they will support him throughout this process. I am informed that Lee had faced significant traumatic events in the lead up to his incarceration, which ultimately led to his issues with the law.
Despite having a history of drug and alcohol abuse, his parents state that Lee has been clean since being sent to gaol.
Mr and Mrs Barber inform me that their son has resided in Australia since he was 7 years old…having no remaining relatives in New Zealand, the Barbers are truly worried about his prospects for rehabilitation should he be deported.
I would be most appreciative of any assistance you can provide on this occasion.’
[59] Exhibit R1, 140-141.
Dr Freelander did not appear at the hearing and was unavailable for cross-examination. It would appear Dr Freelander’s letter is based entirely on what others have told him about Mr Barber’s circumstances and the Tribunal consequently places little weight on this letter.
Letter from Reverend E. Neil Wykes. The Tribunal notes a letter from Reverend Wykes of the Maroubra Baptist Church, who states he has been Mr Barber’s ‘friend and pastor for the last two years,’[60] which coincides with Mr Barber’s tenure in immigration detention. Reverend Wykes states that the tragic circumstances relating to Mr Barber’s relationship with Partner 4 ‘has much to do with where Lee is today.’ Reverend Wykes states he is willing to ‘do anything’ to help Mr Barber ‘create a better future for himself,’ and asks that he be allowed to remain in Australia to continue his rehabilitation. Reverend Wykes submits that Mr Barber should be placed under his guidance, and pledges to ‘be a person to whom Lee was accountable for regular contact and reporting.’ Reverend Wykes did not appear at the hearing, so his knowledge about Mr Barber’s offending, opinions and undertakings could not be tested under cross-examination. This reduces the force of his submissions and the Tribunal places little weight on the evidence of Reverend Wykes.
[60] Ibid, 228.
Yongah Hill Welfare and Engagement BBQ. The Tribunal acknowledges the invitation to Mr Barber to attend a BBQ on 25 July 2018 at Yongah Hill Immigration Detention Centre as a result of his ‘positive, cooperative and compliant behaviour.’[61]
PRIMARY CONSIDERATIONS
[61] Ibid, 229.
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Mr Barber has been convicted of over 100 separate offences during the last 30 years across a number of categories as follows:
(a)Dishonesty Offences. The majority of Mr Barber’s convictions relate to dishonesty offences between 1994 and 2017:
(i)‘Break and enter house (steal)’ in 2010 and 2017;
(ii)‘Enter prescribed premises of any person without lawful excuse’ in 2007, and ‘Enter enclosed land not prescribed premises without a lawful excuse’ in 2017;
(iii)‘Break enter and steal’ or ‘Enter building (steal)’ or ‘Attempt break enter and steal’ in 1990, 1996, 2000, 2003, 2004, 2005;
(iv)‘Larceny’ in 1995, 1996, 1997, 1998, 2000, 2001;
(v)‘Possess housebreaking implements’ in 1995, 2004, 2007, and 2010;
(vi)‘Possess instrument capable of entering conveyance’ in 1997, ‘Possess car breaking implements’ in 2000, and ‘Possess implements to enter/drive conveyance in 2000;’
(vii)‘Steal from motor vehicle’ in 1994, ‘Steal motor vehicle’ in 1996, and ‘Take conveyance’ in 1997;
(viii)‘Receive stolen property’ in 1997, ‘Receive/dispose of stolen property’ in 2004, ‘Goods in custody’ in 1997 and 2000, and ‘Goods in personal custody reasonably suspected of being stolen’ in 1998, 2000 and 2004;
(ix)‘Make / furnish a statement which is false / misleading’ in 2003;
(x)‘Obtain money by deception’ in 2002;
(xi)‘Steal by finding’ in 1994, ‘Stealing’ in 1996; and
(xii)‘Supply false information to pawnbroker’ in 1994.
(b)Traffic / Driving Offences. Mr Barber committed his first traffic offences including ‘Driving unregistered,’ ‘Driving uninsured,’ and ‘Driving unlicenced’ in June 1987. He was again convicted of these three offences in August 1991 and received further convictions for ‘Driving unlicenced’ in 1996, 1997 and 2017. Other offences in this category that Mr Barber has been convicted of are:
(i)‘Low prescribed concentration of alcohol’ in 1987, ‘Special category driver drive with special range Prescribed Concentration of Alcohol’ in June 2013, ‘Drive with middle range Prescribed Concentration of Alcohol’ in December 2014, and ‘Drive with middle range Prescribed Concentration of Alcohol’ in December 2017;
(ii)‘Negligent driving’ in 1996 and 2017;
(iii)‘Drive unlicenced’ in 1996 and ‘Drive motor vehicle while licence suspended’ in 2017; and
(iv)‘Not give particulars to other driver’ in 2017.
(c)Violent Offences / Resist Arrest / Weapons offences. Mr Barber has been convicted of: ‘Common assault’ in 1997; ‘Assault police officer in execution of duty’ in 1998, 2003 and 2004; ‘Resist arrest’ in 1996; ‘Escape custody’ in 2000; and ‘Use offensive weapon with intent to commit indictable offence’ in 2003;
(d)Drug Offences. Such as those Mr Barber was convicted of in June 1994, February 1995, January 1997, October 1998, October 1999, January 2000, March 2002, and March 2010. It is clear from the available evidence, encompassing Mr Barber’s three overdoses in 2017, that his drug use extends over a broader period than is solely reflected by his convictions for drug offences;
(e)Failure to Appear. Mr Barber was convicted of ‘Fail to appear’ in 1998, and ‘Fail to appear in accordance with Bail granted undertaking’ in 2004;
(f)Property Offences. In 1997 Mr Barber was convicted of: ‘Maliciously damaging property,’ ‘Malicious Damage,’ and ‘Destroy or damage property;’
(g)Public Disorder Offences. Mr Barber was convicted of ‘Offensive conduct (language)’ in 1987 and ‘Offensive language’ in 1993.
Tribunal findings: The nature and seriousness of the conduct
The Tribunal finds that the following aspects of paragraph 13.1.1(1) of the Direction are relevant to the specific circumstances of Mr Barber’s case:
(a)13.1.1(1)(a): Mr Barber’s offending encompasses convictions for violent crimes, which are viewed very seriously;
(b)13.1.1(1)(c): Mr Barber’s offending encompasses convictions for violent offences against police (being government officials) in performance of their duties, which are viewed seriously;
(c)13.1.1(1)(d): Mr Barber has received multiple sentences of imprisonment since October 1995 and, notwithstanding notable periods of non-offending, he has subsequently reoffended. Mr Barber agrees he has spent approximately 13 of the last 26 years on remand or imprisoned. The gravity and objective seriousness of his offending is reflected in the disposition of the courts to impose increasingly longer periods of imprisonment ranging from 18 days to four years in duration. Dispositions of imprisonment constitute a last resort in the available sentencing options;
(d)13.1.1(1)(e): Mr Barber’s criminal record reflects a persistent and habitual pattern. His crimes have often been repeated and increased in seriousness across a number of offending categories;
(e)13.1.1(1)(f): The cumulative effect of Mr Barber’s offending during a period exceeding 30 years has imposed and continues to impose adverse consequences on the Australian community. That includes the costs of law enforcement and administration of justice; and
(f)13.1.1(1)(h): Mr Barber was not dissuaded from reoffending by two formal warnings from immigration authorities in 2008 and 2011, despite being aware that his visa was liable for cancellation if he continued to reoffend.

The Tribunal finds that Mr Barber’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Direction acknowledges the community’s acceptance of some risk in relation to the conduct of non-citizens, depending on its seriousness. That is evident from provisions in our criminal justice system and the rehabilitative opportunities it provides.
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage at [111] related to unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
The Tribunal notes Mr Barber’s submissions that he has experienced a number of difficult personal issues, relationship breakdowns, custody issues in the 1990s relating to his daughter, prolonged drug and alcohol dependency, and what he states was a ‘de facto relationship in 2016-2017’ in which ‘things got messed up’ and he ‘lost’ that partner to a ‘mentle heath issue (sic)’ when she was ‘3 months pregnat (sic)’ with his child.[62] The Tribunal notes in this regard various references in sentencing remarks to Mr Barber’s prolonged drug and alcohol abuse, including heroin and cocaine,[63] custody issues relating to his daughter,[64] and the reported death of his partner and their unborn child in March 2017.[65] According to the evidence of Mr Barber and his parents, the latter event resulted in drug overdoses and hospitalisation.[66]
[62] Ibid, 112.
[63] Ibid, 41-44; 53-54; 68; 71; 76-77; 79-80;
[64] Ibid, 41-42; 53; 71.
[65] Ibid, 77.
[66] Ibid, 143.
In his PCF dated 18 February 2018, Mr Barber submits he is a ‘good man’ who had his ‘life in gear, but it fell apart’ with the loss of his family ‘last year.’[67]
[67] Ibid, 113-114.
Mr Barber submits he ‘will not reoffend,’ claiming in his February 2018 PCF he has ‘not taken drugs in 20 years and with the right dessions (sic) and a clear head [he] can move on and not reafend (sic).’[68] Mr Barber refers to being halfway through a program to help him avoid reoffending, and claims to have undertaken a welding course with TAFE, and is ‘weighting (sic) to talk to a counsler (sic).’ There is no evidence before the Tribunal, however, about the rehabilitative courses Mr Barber claims to have completed or part-completed, or any counselling outcomes.
[68] Ibid.
Mr Barber submits that the community would accept the risk of his further offending, which he claims is mitigated by a number of protective factors, most notably the support of his parents and sister, and an ability to easily secure remunerative work. The Tribunal notes the similarities between those claims and previous submissions from Mr Barber that he had reached a ‘turning point,’ had found renewed motivation to live a law-abiding life,[69] and was supported by his family, only to subsequently reoffend.
[69] Ibid, 46.
There is no objective expert evidence before the Tribunal to corroborate Mr Barber’s claims about rehabilitative progress and risk of recidivism. As O’Bryan J held in Sadruga v Minister for Home Affairs [2019] FCA 1078 at [30], however, such evidence is not essential to making findings in respect of this primary consideration. The Tribunal notes that the most recent reference by a Court to Mr Barber’s rehabilitative progress is the 1 December 2017 sentencing remarks, in which Her Honour expresses disapproval about Mr Barber’s self-discharge from a residential rehabilitation program and opines that his capacity for rehabilitation ‘is limited.’[70]
[70] Ibid, 80 [32]-[41].
The High Court has held that past actions are legitimate predictors of future behaviour.[71] The Tribunal notes that the gravity and frequency of Mr Barber’s offending over the last 30 years has been accompanied by increasing pessimism in the courts, bordering on exasperation at times about his persistent reoffending and diminishing prospects of rehabilitation.[72]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[71] Minister for Immigration and Ethnic Affairs v Guo and Another (1997)] 144 ALR 567, 578-579.
[72] See e.g. Exhibit R1, 68;80.
The Tribunal finds that:
(a)Mr Barber’s criminal offending has continued over a 30 year period, both before and after the relationship breakdowns, custody issues, and personal tragedies he relies upon as contextually-relevant to his offending;
(b)Mr Barber’s criminal offending has persisted despite numerous opportunities to deal with his addiction. That is of particular concern given the clear nexus between Mr Barber’s substance abuse and offending. The Tribunal does not accept Mr Barber’s submission that he has not ‘taken drugs in 20 years,’[73] or that he has ‘not been in trouble with the law for some time,’[74] which is at odds with the available evidence. The Tribunal concludes that Mr Barber is unable to reliably abstain from drugs and alcohol when not imprisoned or in immigration detention;
(c)Mr Barber has reoffended following every previous release from prison. He has also reoffended despite receiving two formal warnings from immigration authorities about the potentially dire consequences for his ability to remain in Australia. Mr Barber has reoffended while on conditional liberty, including bail, community service, sureties and good behaviour periods. Pursuant to the principle at paragraph 6.3(1) of the Direction, Mr Barber’s conduct reflects a persistent failure to respect Australia’s law enforcement framework;
(d)If he were to commit further violent offences, or offences like ‘high range’ drink driving or negligent driving,[75] Mr Barber could cause serious physical harm to members of the Australian community. If Mr Barber were to commit further dishonesty offences, he would continue to deprive members of the Australian community of their property, imposing financial harm and inconvenience on his victims;
(e)The Tribunal does not accept Mr Barber’s claims that he is a different person today as a result of rehabilitative progress since his last sentence of imprisonment and subsequent immigration detention. There is no corroborating expert evidence to that effect and his troubling record of criminal offending over 30 years is an unreliable foundation for that claim. The Tribunal is of the view, particularly in light of three life-threatening overdoses Mr Barber refers to in 2017 and his self-discharge from a residential rehabilitation program, that Mr Barber’s rehabilitation is incomplete at best;
(f)Mr Barber’s expressions of insight, remorse and rehabilitative progress are unpersuasive. The courts have reflected with increasing pessimism on his lack of rehabilitative progress in the past despite numerous opportunities. His previous undertakings to the courts about living a law-abiding life have proven aspirational at best. His claim that the Australian Government should have done more to keep him safe, gives rise to concerns about his remorse, insight and acceptance of personal responsibility. Someone with developed insight, genuine remorse, and who had made meaningful rehabilitative progress, would not have continued to reoffend with such frequency over the last 30 years. Any progress Mr Barber may have made in rehabilitating himself during his most recent period of imprisonment and immigration detention is uncorroborated and untested in the community.
[73] Ibid, 131.
[74] Ibid.
[75] Exhibit R1, 79.
The harm that would be caused if Mr Barber was to repeat his criminal offending is so serious that any likelihood of repetition is unacceptable. Having regard for the nature, frequency and seriousness of Mr Barber’s offending, the available sentencing remarks, and the persistence of his offending despite two formal warnings from immigration authorities, the Tribunal concludes his overall risk of recidivism is unacceptably high. The specific circumstances of Mr Barber’s case support the exercise of the discretion to refuse to revoke the cancellation of his visa. This primary consideration weighs very strongly against revocation.
Tribunal consideration: Best interests of minor children in Australia
Paragraph 13.2 of the Direction requires decision-makers to make a determination about whether revocation is in the best interests of the child. This provision applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made. It is not required that the applicant has a parental relationship with the child in question. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at paragraph 13.2(4) to be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
For the reasons previously adduced, the Tribunal accepts that Mr Barber has a daughter now aged 28 and a son aged 17 who will legally be an adult within a year. No weight can be placed on his daughter in relation to this primary consideration given she is not a minor child. Less weight is placed on the interests of his son by virtue of his imminent adulthood.
The Tribunal accepts Mr Barber’s evidence that his son was born after his relationship with Partner 2 had broken down, that he has only seen his son once as an infant, and has not seen or communicated with his son since. Although Mr Barber says he is on speaking terms with his son’s biological mother, there is no evidence from her or other care givers about whether or not the relationship Mr Barber seeks would be reciprocated by the child. Others have cared for the child during the first 17 years of his life and there is no evidence that their care has been in any way been deficient, or that Mr Barber has made any financial or other contribution. That is not to suggest Mr Barber has not made any contributions through child support or at his own initiative, just that there is no evidence before the Tribunal to enable reliable findings in this regard. The Tribunal notes Mr Barber’s claim at the hearing that he has previously paid all child support owing and was open to making a financial contribution in the future.
Tribunal findings: Best interests of minor children in Australia
Notwithstanding Mr Barber’s conflicting evidence about whether his son is currently a minor child or adult, the Tribunal has acted on the premise that his son is currently 17 and his interests are therefore enlivened under this primary consideration. The Tribunal finds:
(a)Mr Barber has not had a relationship with his son, who he last saw as an infant;
(b)Mr Barber’s son has been cared for by Partner 2 since their separation and there is no evidence that the child’s care givers have been reliant on any parental or other supporting contributions from Mr Barber;
(c)There is no evidence as to how the child’s interests may be affected by a decision in this matter, or whether Mr Barber’s aspiration to re-connect would be welcomed. There is no evidence that Mr Barber would assume any parental or supporting role if released, or that Mr Barber’s repatriation to New Zealand would have any significant or enduring effect on his son; and
(d)The Tribunal is unable to conclude that even if Mr Barber was able to reconnect with his son, that his impact on any renewed relationship, ahead of his son’s approaching adulthood, could be reliably regarded as positive. That follows from Mr Barber’s persistent criminal record, incomplete rehabilitation, and unacceptable risk of reoffending.
While it is generally accepted that the interests of a child are served by access to their biological parents, even an estranged parent, the circumstances of Mr Barber’s case are such that little if any weight should be placed on this primary consideration. Given the specific circumstances of this case, the Tribunal does not accept it is in the best interests of the child that Mr Barber’s visa cancellation be revoked. Taking the evidence at its best, this primary consideration has neutral weight.
Tribunal consideration: Expectations of the Australian community
Paragraph 13.3 of the Direction states:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
(emphasis added)
The norm inherent in this primary consideration is reflected at paragraph 6.3(3) of the Direction, which states that non-citizens who commit serious crimes, including of a violent nature, ‘should generally’ expect to forfeit the privilege of staying in Australia. But use of words like ‘may’ and ‘generally’ convey discretion. Paragraph 6.1(3) of the Direction requires decision-makers to consider the ‘specific circumstances of the case.’ Paragraph 6.3(5) of the Direction states that a higher level of tolerance may be afforded to those who have ‘lived in the Australian community for most of their life, or from a very young age.’ Paragraph 6.3(7) of the Direction refers to the length of time ‘a non-citizen has been making a positive contribution to the Australian community’ as a principle to be taken into account when applying relevant considerations.
In FYBR v Minister for Home Affairs [2019] FCA 500, Perry J stated at [42] that the primary consideration Expectations of the Australian community, as it related in that matter to a visa refusal decision:
‘…is a statement of the Government’s view…for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.’
Bromwich J has held in Afu v Minister for Home Affairs [2018] FCA 1311 at [85]:
‘The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65 reproduced above. The Tribunal was required to give effect to those norms...’
Referring to the reasoning in YNQY,[76] Griffith J has recently stated in DKXY v Minister for Home Affairs [2019] FCA 495, at [34]:
‘…the ambiguity of the relevant reasoning in YNQY lends itself to either a broad or narrow approach. The AAT did not take the view that the primary consideration concerning expectations of the Australian community inevitably weighed against revocation. Rather, as the AAT expressly acknowledged at [33] of its reasons for decision, consideration had to be given to the broad range of the applicant’s circumstances when considering the expectations of the Australian community. The AAT then proceeded to implement that broad approach by reference to the totality of the applicant’s circumstances...’
[76] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (“YNQY”).
Acknowledging that paragraph 8(3) of the Direction states ‘Both primary and other considerations may weigh in favour of, or against...whether or not to revoke a mandatory cancellation of a visa,’ this primary consideration is ultimately a matter of judgement for each decision-maker based on the specific circumstances of each case.[77] The Tribunal considers that relevant factors are non-exhaustive and include:
(a)the time a non-citizen has spent in Australia and their previous contribution to the community;
(b)the nature and seriousness of any convictions or other objectionable conduct;
(c)whether there have been any previous warnings or opportunities for the non-citizen to rehabilitate; and
(d)evidence about rehabilitative prospects and risk of recidivism.
[77] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72].
The Tribunal has previously concluded that the Australian community, informed of the specific circumstances of a case, may consider an applicant should be permitted to hold a visa, or that this primary consideration has neutral effect.[78] On other occasions the Tribunal has concluded the community would expect the non-citizen to not hold a visa.
[78] ZNBG and Minister for Home Affairs [2019] AATA 1872 at [125].
As Deputy President Frost of this Tribunal has previously explained, it ‘is within the broad middle ground of our society that the “expectations of the Australian community” are properly sought.’[79] As discussed above, the community’s underlying expectation of compliance with the law is tempered with some tolerance, depending on the seriousness of the conduct. The community generally expects that people will be given an opportunity to realign their behaviour with expected social norms.
[79] LCNB and Minister for Immigration and Border Protection [2015] AATA 463, at [77]-[81].

Having considered the specific circumstances of Mr Barber’s case, the Tribunal concludes the Australian community would be sympathetic to Mr Barber’s residence in Australia since a young age, during which he undertook primary and secondary schooling to Year 10, completed a trade in carpentry, and worked in that trade for some years. But any sympathy extended to him is substantially outweighed by the gravity, cumulative effect and habitual nature of his offending over three decades. Mr Barber’s conduct reflects a prolonged disregard of Australia’s laws and repeated renunciation of the community’s expectations. Rather than interact lawfully in the life of the Australian community, Mr Barber has adversely impacted numerous members of the Australian community. Through his criminal offending he has separated himself from the community, spending approximately half of the last 26 years on remand or imprisoned. That record and unwillingness to heed two previous warnings from immigration authorities has acted to extinguish any residual sympathy the community may have for his circumstances. The community would likely share the increasingly pessimistic views of the courts about Mr Barber’s rehabilitative prospects.
The Tribunal concludes that the community would expect that the mandatory cancellation of Mr Barber’s visa should not be revoked. This primary consideration weighs very strongly against visa revocation.
OTHER CONSIDERATIONS
Tribunal consideration: International non-refoulement obligations
Paragraph 14.1 of the Direction provides:
(1) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia's interpretation of those obligations and, where relevant, decision- makers should follow the tests enunciated in the Act.
(2)       The existence of a non-refoulement obligation does not preclude non-  revocation of the mandatory cancellation of a non-citizen’s visa. This is   because Australia will not remove a non-citizen, as a consequence of the   cancellation of their visa, to the country in respect of which the non-  refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations   can be raised by the non-citizen in a request to revoke under s501CA the   mandatory cancellation of their visa, or can be clear from the facts of the   case (such as where the non-citizen held a protection visa that was   mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-  refoulement obligations and that non-citizen would be able to make a valid             application for another visa if the mandatory cancellation is not revoked, it   is unnecessary to determine whether non-refoulement obligations are owed   to the non-citizen for the purposes of determining whether the cancellation   of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12 A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them – sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Mr Barber has not raised any claims, nor does the evidence disclose that Australia’s non-refoulement obligations are enlivened as a relevant consideration in this matter. Mr Barber’s concerns are expressed as practical impediments to repatriation, which are considered under ‘Extent of impediments if removed.’
Tribunal consideration: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. More weight should be given to the time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Barber arrived in Australia in 1978 and was convicted of his first offences in 1987 soon after reaching adulthood. He states that he loves Australia and it is the only country he has known as home.[80] He wants to remain here with his family and submits that if allowed to do so he will find work and live a law-abiding life.
[80] Exhibit R1, 104.
Mr Barber refers to a number of immediate and extended family members who live in Australia, including his mother, father, two sisters, 28-year old daughter and 17 year-old son,[81] who have a right to remain in Australia indefinitely. He refers to other close family members in Australia such as an aunt, uncle, cousin and nephew,[82] from whom there is no evidence before the Tribunal. Mr Barber contends that repatriation to New Zealand would hurt his family in Australia, to whom he is very close.[83]
[81] Ibid, 130.
[82] Ibid.
[83] Ibid, 104.
The Tribunal accepts from the evidence of Mr Barber’s parents and younger sister that they love him, have provided unconditional support to him, and pledge further practical and emotional support. They would be saddened and impacted emotionally if Barber was repatriated to New Zealand. But the Tribunal is unable to make a finding about any impact on Mr Barber’s daughter and son if he were returned to New Zealand. He submits, as evidence of his relationship with his now 28-year old daughter, two letters he wrote to her in 1995.[84] Given these letters are approximately 24 years old, the Tribunal places little weight on their probative value in respect of this consideration. There is no corroborating evidence from the daughter or son whose interests Mr Barber invokes.
[84] Ibid, 210-211.
Mr Barber submits he has made a contribution to the Australian community through work as a carpenter, having completed a four-year apprenticeship,[85] and using those skills over the years in a number of significant infrastructure projects and as a self-contractor. He also claims he has made a contribution during his last two years in immigration detention, acting as a mentor for other detainees, who he says consider him to be a respected ‘statesman.’
[85] Ibid, 116.
The Tribunal has had regard for the letters from Dr Freelander, Reverend Wykes, and the invitation to Mr Barber to attend a BBQ on 25 July 2018 at Yongah Hill Immigration Detention Centre as a result of his ‘positive, cooperative and compliant behaviour.’[86]
[86] Ibid, 229.
Tribunal findings: Strength, nature and duration of ties
Mr Barber’s criminal conduct began soon after he reached adulthood and has continued for over 30 years. He has spent approximately half of the last 26 years on remand or imprisoned. Less weight is consequently placed on this consideration.
There is a dearth of reliable evidence about Mr Barber’s positive contribution to Australia. Even if all of his submissions were accepted, any positive contribution through work or assisting others in prison or immigration detention can best be described as ‘limited’ and substantially outweighed by Mr Barber’s persistent criminal conduct over three decades. Little weight can therefore be placed on Mr Barber’s positive contribution to Australia.
The Tribunal accepts Mr Barber has strong and supportive family ties in Australia, particularly his parents and youngest sister from whom he accesses practical and emotional support. The Tribunal accepts the evidence regarding ‘multiple medical issues’ suffered by Mr Barber’s parents, and their wish that he remain with them in Australia, in part to contribute to their future care. The Tribunal also accepts these medical conditions may impede the ability of Mr Barber’s parents to visit him in New Zealand or a third country.
On balance, this consideration weighs in favour of revocation.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal finds that Mr Barber has not raised any claims, nor does the evidence disclose, that any Australian business interests would be affected by his removal. No weight is therefore placed on this consideration.
Impact on victims
Paragraph 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Notwithstanding the references to victims in the sentencing remarks, there is no specific evidence from victims of Mr Barber’s offending about the impact of a decision in this matter. Nor does the evidence disclose that this consideration is enlivened as a relevant consideration in this matter.
Tribunal consideration: Extent of impediments if removed
Paragraph 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;
b)        Whether there are substantial language or cultural barriers; and
c)        Any social, medical and/or economic support available to them in that country.
Mr Barber is currently 51 years of age and states he has no family in New Zealand and has not returned there since he was ‘a little boy.’[87] He expresses concerns about securing stable accommodation and generating sufficient income for daily living expenses.[88] He also submits that repatriation to New Zealand will separate him from his strongest sources of practical and emotional support; principally his parents and youngest sister. Mr Barber contends that repatriation to New Zealand may mean he will never see his son again.[89]
[87] Ibid, 117.
[88] Ibid.
[89] Ibid, 112.
Mr Barber stated during his oral evidence that he has been in contact with a potential employer in Auckland, although he is disinclined to re-settle there if repatriated. He submits that he is motivated to return to work and will have no difficulty securing remunerative work based on his carpentry skills and more recently-acquired welding competencies.
In his February 2018 PCF, Mr Barber refers to an unnamed ‘Blood Presser (sic) Pill’[90] as the only medication he takes. He confirmed this during the hearing and did not provide any evidence about other diagnosed medical conditions or prescribed medications.
[90] Ibid, 133.
During closing submissions, the respondent referred to a downloaded document from the New Zealand Department of Correction titled ‘Returning offenders order,’[91] which was tendered in support of submissions that Mr Barber would receive support and supervision from New Zealand authorities on arrival, pursuant to the Returning Offenders (Management and Information) Act 2015 (NZ). The Tribunal notes the general nature of this downloaded document, which was unsupported by any corroborating evidence about how its provisions, or the New Zealand legislation that it springs from, may apply in the specific circumstances of Mr Barber’s case. The Federal Court has previously held that
‘…It is axiomatic that “foreign law is a question of fact to be proved by expert evidence” (Neilson v Overseas Projects Corporation of Victoria [2005] HCA 54; 223 CLR 331 at [115] per Gummow and Hayne JJ). Although the AAT is not bound by the rules of evidence, it is a matter for the party seeking to rely on foreign law to adduce evidence upon which the AAT may make factual findings as to the content of the foreign law.’[92]
[91] Exhibit R2.
[92] DKXY v Minister for Home Affairs [2019] FCA 495 at [41].
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)no weight can be placed on Exhibit R2;
(b)there are no discernible language or cultural impediments to Mr Barber’s repatriation to New Zealand;
(c)there is no evidence that Mr Barber is unable to work due to any health conditions. He is 51 years of age and expresses strong motivation to return to remunerative work. In response to questions from the Tribunal, Mr Barber claims that his carpentry qualifications remain current to the present day and that he has further improved his work prospects by undertaking a TAFE welding course while imprisoned. The Tribunal accepts Mr Barber’s evidence that his existing trade skills are likely to be desirable in building and other industries;
(d)there is no evidence that Mr Barber is unable to travel overseas or that the blood pressure medication or any other medications he may require are not available in New Zealand;
(e)Mr Barber’s evidence is that he has been abstinent from illicit drugs since his last imprisonment and made no submissions about future rehabilitation needs. Even if he chose to avail himself of future drug and alcohol rehabilitation, there is no evidence that such programs are not available in New Zealand;
(f)repatriation to New Zealand would separate Mr Barber from his strongest sources of practical and emotional support in Australia; his parents and younger sister. The evidence about his parent’s deteriorating health would also make it more difficult for them to travel to New Zealand, notwithstanding his mother’s evidence that they would visit him if he was repatriated;
(g)Mr Barber would be confronted by challenges in re-establishing himself in a country he last lived in as a child. That includes a period of adjustment to find stable accommodation and a source of income or income support. He would also have to develop new social networks. If Mr Barber were unable to quickly secure stable accommodation or work in New Zealand, there is no evidence he would not have access to the same health, housing services, and income support available to all other New Zealand citizens; and
(h)although Mr Barber would confront impediments if repatriated, it cannot be said on the available evidence that any such impediments are insurmountable.
On balance, this consideration weighs in favour of revocation.
Other considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of Mr Barber’s application as provided for at paragraph 14(1) of the Direction.
CONCLUSION
In determining whether the conditional discretion under s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of Mr Barber’s visa should be exercised, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case.
The nature, frequency and cumulative effect of Mr Barber’s offending is objectively very serious. He has consistently reoffended despite multiple sentences of imprisonment and two formal warnings from immigration authorities. His conduct reflects a persistent failure to respect Australia’s laws and institutions. Having weighed the risk of Mr Barber’s recidivism across the various categories of his offending, the Tribunal finds he constitutes an unacceptable risk of harm to the Australian community. The primary consideration ‘Protection of the Australian community’ weighs strongly against revocation.
Notwithstanding the inconsistencies in evidence about when Mr Barber’s son was born, the Tribunal has proceeded on the basis that his son is currently 17 years of age. For the reasons previously adduced, very little weight can be placed on the ‘Best interests of minor children in Australia affected by the decision.’ Taking the evidence at its best, this primary consideration has neutral weight.
In relation to ‘Expectations of the Australian community,’ any sympathy extended to Mr Barber is substantially outweighed by the gravity, cumulative effect and habitual nature of his offending. His criminal conduct reflects a prolonged disregard of Australia’s laws and renunciation of expected social norms. He has adversely impacted numerous members of the Australian community. Through his repetitive criminal offending he has separated himself from the community, spending approximately half of the last 26 years on remand or imprisoned. That criminal record and his unwillingness to heed two previous warnings from immigration authorities, has acted to extinguish any residual sympathy the community may have for his circumstances or tolerance for his offending. The community would likely share the increasingly pessimistic views of the courts about Mr Barber’s rehabilitative prospects. This primary consideration weighs strongly against revocation.
Of the other considerations relevant in this matter, there is a dearth of reliable evidence about Mr Barber’s positive contribution to Australia. His criminal conduct began soon after he reached adulthood and has continued for over 30 years. Even if all of Mr Barber’s submissions about positive contributions through work or assisting others in prison or immigration detention were accepted, these can best be described as ‘limited’ and substantially outweighed by his offending. That said, the Tribunal accepts Mr Barber has strong and supportive family ties in Australia, particularly his parents and youngest sister from whom he accesses practical and emotional support. On balance, the consideration ‘Strength, nature and duration of ties’ weighs in favour of revocation.
There is no discernible language or cultural impediment to Mr Barber’s repatriation to New Zealand. There is also no evidence that he is unable to work due to any health conditions. Mr Barber expresses strong motivation to return to remunerative work and the Tribunal accepts his evidence that his existing skillset is likely to be competitive in building and other industries. Mr Barber would nevertheless confront challenges in re-establishing himself in a country that he last lived in as a child. That includes finding stable accommodation, work, and developing new social networks and sources of support. His parents’ deteriorating health is also likely to make it increasingly difficult for them to travel to New Zealand to see him. Although Mr Barber would confront impediment, it cannot be said they are insurmountable. Even if Mr Barber was unable to quickly secure stable employment or accommodation as he claims, there is no evidence he would not have access to the same health, housing services, and income support available to all other New Zealand citizens. On balance, however, ‘Extent of impediments if removed’ weighs in favour of revocation.

Having weighed all of the considerations individually and cumulatively, the weight of evidence supports a finding that there is not another reason why the decision to cancel Mr Barber’s visa should be revoked. Given the specific circumstances of this case, the primary consideration ‘Best interests of minor children in Australia’ has neutral effect. Two other considerations; ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ favour revocation. These are considerably outweighed by the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community,’ which weigh very strongly against revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

..............................[sgd].....................................
Associate
Dated: 23 August 2019

Date(s) of hearing: 13 August 2019

Applicant: In person

Solicitors for the Respondent: N Cuthbert, Clayton Utz
Attachment 1
NATIONAL POLICE CERTIFICATE

COURT DATE OFFENCE SENTENCE

12/08/1987
1)    Low Prescribed Concentration of Alcohol

2)    Driving unregistered

3)    Driving uninsured

4)    Driving unlicensed

1)    Fined $100, disqualified to rising of court

2)    Fined $100

3)    Fined $100

4)    Fined $100

17/12/1987
1)    Driving unregistered

2)    Not pay contribution to transcoder fund

3)    Offensive conduct (language)

1)    Fined $200

2)    Fined $200

3)    Fined $75

15/10/1990
1)    Break, enter and steal

2)    Break, enter and steal

1)    200hrs Community Service Order

2)    12 months Recognisance Good Behaviour Bond, $1,000 surety

26/08/1991
1)    Driving unlicensed

2)    Driving unregistered

3)    Driving uninsured

1)    Fined $200

2)    Fined $200

3)    Fined $200

24/06/1993 1)    Offensive language 1)    Fined $120, court costs $45

6/06/1994
1)    Self-administer prohibited drug

(2 counts)

2)    Supply false information to pawnbroker

3)    Steal by finding

(2 counts)

4)    Steal from motor vehicle (2 counts)

1)    On each count fined $150, court costs $46

2)    Fined $100, court costs $46

3)    On each count 2 years Recognisance Good Behaviour Bond, $1,000 surety

4)    On each count 2 years Recognisance Good Behaviour Bond, $500 surety & accept supervision NSW Probation Service; seek psychiatric/psychological treatment; attend drug & alcohol counselling

04/10/1995
1)    Larceny

2)    Possess implements to enter conveyance

1)    Fixed term - 6 months imprisonment

2)    Fixed term - 6 months imprisonment

20/02/1996
1)    Larceny

(2 counts)

2)    Break, enter and steal

3)    Attempt break and enter with intent

4)    Steal motor vehicle

5)    Self-administer prohibited drug

6)    Possess implements capable of breaking into conveyance

7)    Resist arrest

8)    Drive unlicensed

9)    Negligent driving

10) Steal motor vehicle

11) Stealing

12) Self-administer prohibited drug

13) Possess housebreaking implements capable of entering conveyance

1)    Fixed term - 4 months imprisonment

2)    Fixed term - 4 months imprisonment

3)    Fixed term - 4 months imprisonment

4)    Fixed term - 4 months imprisonment

5)    Fixed term - 4 months imprisonment

6)    Fixed term - 4 months imprisonment

7)    Rising of the court

8)    Rising of the court

9)    Rising of the court

10) Fixed term - 4 months imprisonment

11) Fixed term - 4 months imprisonment

12) Fixed term - 4 months imprisonment

13) Fixed term - 4 months imprisonment

10/01/1997 1)    Possess prohibited drug (heroin) 1)    Fined $500, court costs $51

17/01/1997 1)    Maliciously damaging property 1)    Fined $500, court costs $51, compensation $178

30/05/1997 1)    Larceny 1)    Fined $1,000, court costs $51

30/09/1997
1)    Driving unlicensed

2)    Take conveyance

3)    Goods in custody

4)    Possess implement capable to enter conveyance

5)    Malicious damage

1)    Fined $200, court costs $51

2)    Fixed term - 5 months imprisonment

3)    Fixed term - 1 month imprisonment

4)    Fixed term - 4 months imprisonment

5)    Fixed term - 4 months imprisonment

7/11/1997 1)    Receive stolen property - theft (<$2,000) 1)    Minimum term - 5 months imprisonment, additional term 3 months

20/11/1997
1)    Common assault

2)    Destroy or damage property (<$2,000)

1)    Fixed term - 12 weeks and 6 days imprisonment

2)    Fixed term - 12 weeks and 6 days imprisonment

15/01/1998 1)    Fail to appear 1)    Fixed term - 18 days imprisonment

11/02/1998
1)    Assault officer in execution of duty

2)    Goods in personal custody reasonably suspected being stolen

1)    Fixed term - 4 months imprisonment

2)    Fixed term - 4 months imprisonment

13/10/1998
1)    Larceny value ($2,000)

2)    Larceny value ($2,000)

3)    Larceny

4)    Possess prohibited drug

5)    Possess prohibited drug

6)    Goods in personal custody reasonably suspected being stolen

1)    Fixed term - 6 months imprisonment

2)    Fixed term - 6 months imprisonment

3)    Fixed term - 6 months imprisonment

4)    Fixed term - 6 months imprisonment

5)    Fixed term - 6 months imprisonment

6)    Fixed term - 6 months imprisonment

7/10/1999
1)    Possess prohibited drug

2)    Possess prohibited drug

1)    Fined $500, court costs $52

2)    Fined $200, court costs $52

11/01/2000
1)    Possess prohibited drug

2)    Larceny

3)    Goods in custody

4)    Goods in custody

5)    Goods in custody

6)    Larceny

7)    Administer prohibited drug

8)    Larceny

9)    Larceny

10) Goods in custody

11) Break, enter and steal

12) Possess car breaking implements

1)    Rising of the court

2)    Rising of the court

3)    Fixed term - 6 months imprisonment

4)    Fixed term - 6 months imprisonment

5)    Fixed term - 6 months imprisonment

6)    Fixed term - 6 months imprisonment

7)    Fixed term - 6 months imprisonment

8)    Fixed term - 6 months imprisonment

9)    Fixed term - 6 months imprisonment

10) Fixed term - 6 months imprisonment

11) Minimum term - 9 months, additional term 3 months

12) Minimum term 9 months, additional term 3 months

4/08/2000
1)    Possess implements to enter/drive conveyance

2)    Goods in personal custody reasonably suspected being stolen

3)    Escaped custody

1)    6 months imprisonment

2)    6 months imprisonment

3)    6 months imprisonment

29/10/2001 1)    Larceny value (<$2,000) 1)    Fined $1,000, court costs $58

7/02/2002 1)    Obtain money etc by deception (<$2,000) 1)    Fined $600, court costs $58

28/03/2002
1)    Possess prohibited drug

2)    Self-administer/attempt to self- administer prohibited drug

1)    Fined $300

2)    Fined $300

28/06/2002
1)    Possess prohibited drug

2)    Self-administer/attempt to self- administer prohibited drug

1)    Fined $200, court costs $58

2)    Fined $200

19/06/2003
1)    Use etc offensive weapon with intent to commit indictable offence

2)    Break and enter building (steal) value (<$15,000)

3)    Assault police officer in execution of duty without actual bodily harm

4)    Break and enter building (steal) value (<$15,000)

5)    Break and enter building (steal) value (<$15,000)

1)    See below for indictable offences

2)    Indicted, 4 years imprisonment with 2 years 6 month non-parole period (severity appeal lodged)

3)    18 months imprisonment with 9 month non-parole period

4)    Indicted, taken into account on Form 1

5)    4 years 6 months imprisonment with 2 years 6 month non-parole period (severity appeal lodged)

25/07/2003 1)    Make/furnish a statement which is false/misleading 1)    Taken into account on Form 1 at Sydney District Court on 19/06/2003

7/06/2004
Appeal to NSW Court of Criminal Appeal of sentence on 19/06/2003:

1)    Break and enter building (steal) value (<$15,000)

2)    Assault police officer in execution of duty without actual bodily harm

3)    Break and enter building (steal) value (<$15,000)

1)    Appeal allowed, substitute 4 years imprisonment with 2 years 3 month non-parole period

2)    Appeal dismissed

3)    Appeal allowed, substitute 4 years imprisonment with 2 years 3 month non-parole period

6/08/2004
1)    Break and enter building (steal) value (<$15,000)

2)    Break and enter building (steal) value (<$15,000)

1)    3 years 4 months imprisonment with 2 years 6 month non-parole period

2)    12 months imprisonment

1/10/2004
1)    Possess housebreaking implements

2)    Fail to appear in accordance with Bail granted undertaking

3)    Receive/dispose stolen property- min. Indictable offence (<$5,000)

4)    Break and enter building (steal) value (<$15,000)

5)    Goods in personal custody reasonably suspected being stolen

1)    6 months imprisonment

2)    6 months imprisonment

3)    6 months imprisonment

4)    12 months imprisonment

5)    6 months imprisonment

29/08/2005 1)    Break and enter building (steal) value (<$15,000) 1)    2 years imprisonment

18/10/2007
1)    Possess housebreaking implements

2)    Enter prescribed premises of any person without lawful excuse

1)    6 months imprisonment

2)    Fined $200, court costs $70

10/02/2010
1)    Possess prohibited drug

2)    Possess housebreaking implements

3)    Break and enter house etc (steal) value (<$15,000)

4)    Possess housebreaking implements

5)    Break and enter house etc (steal) value (<$15,000)

1)    6 months imprisonment (severity appeal lodged)

2)    6 months imprisonment (severity appeal lodged)

3)    12 months imprisonment, $1,850 compensation (severity appeal lodged)

4)    6 months imprisonment (severity appeal lodged)

5)    18 months imprisonment with 12 month non-parole period (severity appeal lodged)

11/03/2010
Appeal to Sydney District Court in respect of conviction on 10/02/2010:

1)    Possess housebreaking implements

2)    Possess prohibited drug

3)    Possess housebreaking implements

4)    Break and enter house etc (steal) value (<$15,000)

5)    Break and enter house etc (steal) value (<$15,000)

1)    Conviction confirmed

2)    Conviction confirmed

3)    Conviction confirmed

4)    Conviction confirmed

5)    Conviction confirmed, substitute 10 month non-parole period

4/03/2013 1)    Special category driver drive with special range Prescribed Concentration of Alcohol 1)    Fined $400, court costs $83, disqualified for 6 months

24/06/2013 1)    Special category driver drive with special range Prescribed Concentration of Alcohol 1)    Fined $150, disqualified for 3 months (severity appeal lodged)

25/07/2013 1)    Special category driver drive with special range Prescribed Concentration of Alcohol 1)    No conviction section 10 Good Behaviour bond, reside at specified address for 18 months

11/12/2014 1)    Drive with middle range Prescribed Concentration of Alcohol - 1st offence 1)    Fined $1,000 disqualified for 9 months

18/07/2017 1)    Enter enclosed land not prescribed premises without lawful excuse 1)    Fined $275

1/12/2017
1)    Enter enclosed land not prescribed premises without lawful excuse

2)    Break and enter house etc (steal) value (<$60,000)

3)    Drive with middle range Prescribed Concentration of Alcohol - 2nd offence

4)    Drive motor vehicle while licence suspended - 2nd offence

5)    Drive with high range Prescribed Concentration of Alcohol - 2nd offence

6)    Negligent driving (no death or grievous bodily harm)

7)    Not give particulars to other driver

8)    Drive motor vehicle while licence suspended - 2nd offence

1)    Section 10a conviction with no other penalty, $500 compensation

2)    Aggregate 12 months imprisonment with 6 month non-parole period

3)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months, alcohol interlock program 24 months

4)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 12 months

5)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months, alcohol interlock program 48 months

6)    Section 10a conviction with no other penalty

7)    Section 10a conviction with no other penalty

8)    Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months

[2019] AATA 2945

23 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Natural Justice

Date(s) of hearing:	13 August 2019
Applicant:	In person
Solicitors for the Respondent:	N Cuthbert, Clayton Utz

COURT DATE	OFFENCE	SENTENCE
12/08/1987	1) Low Prescribed Concentration of Alcohol 2) Driving unregistered 3) Driving uninsured 4) Driving unlicensed	1) Fined $100, disqualified to rising of court 2) Fined $100 3) Fined $100 4) Fined $100
17/12/1987	1) Driving unregistered 2) Not pay contribution to transcoder fund 3) Offensive conduct (language)	1) Fined $200 2) Fined $200 3) Fined $75
15/10/1990	1) Break, enter and steal 2) Break, enter and steal	1) 200hrs Community Service Order 2) 12 months Recognisance Good Behaviour Bond, $1,000 surety
26/08/1991	1) Driving unlicensed 2) Driving unregistered 3) Driving uninsured	1) Fined $200 2) Fined $200 3) Fined $200
24/06/1993	1) Offensive language	1) Fined $120, court costs $45
6/06/1994	1) Self-administer prohibited drug (2 counts) 2) Supply false information to pawnbroker 3) Steal by finding (2 counts) 4) Steal from motor vehicle (2 counts)	1) On each count fined $150, court costs $46 2) Fined $100, court costs $46 3) On each count 2 years Recognisance Good Behaviour Bond, $1,000 surety 4) On each count 2 years Recognisance Good Behaviour Bond, $500 surety & accept supervision NSW Probation Service; seek psychiatric/psychological treatment; attend drug & alcohol counselling
04/10/1995	1) Larceny 2) Possess implements to enter conveyance	1) Fixed term - 6 months imprisonment 2) Fixed term - 6 months imprisonment
20/02/1996	1) Larceny (2 counts) 2) Break, enter and steal 3) Attempt break and enter with intent 4) Steal motor vehicle 5) Self-administer prohibited drug 6) Possess implements capable of breaking into conveyance 7) Resist arrest 8) Drive unlicensed 9) Negligent driving 10) Steal motor vehicle 11) Stealing 12) Self-administer prohibited drug 13) Possess housebreaking implements capable of entering conveyance	1) Fixed term - 4 months imprisonment 2) Fixed term - 4 months imprisonment 3) Fixed term - 4 months imprisonment 4) Fixed term - 4 months imprisonment 5) Fixed term - 4 months imprisonment 6) Fixed term - 4 months imprisonment 7) Rising of the court 8) Rising of the court 9) Rising of the court 10) Fixed term - 4 months imprisonment 11) Fixed term - 4 months imprisonment 12) Fixed term - 4 months imprisonment 13) Fixed term - 4 months imprisonment
10/01/1997	1) Possess prohibited drug (heroin)	1) Fined $500, court costs $51
17/01/1997	1) Maliciously damaging property	1) Fined $500, court costs $51, compensation $178
30/05/1997	1) Larceny	1) Fined $1,000, court costs $51
30/09/1997	1) Driving unlicensed 2) Take conveyance 3) Goods in custody 4) Possess implement capable to enter conveyance 5) Malicious damage	1) Fined $200, court costs $51 2) Fixed term - 5 months imprisonment 3) Fixed term - 1 month imprisonment 4) Fixed term - 4 months imprisonment 5) Fixed term - 4 months imprisonment
7/11/1997	1) Receive stolen property - theft (<$2,000)	1) Minimum term - 5 months imprisonment, additional term 3 months
20/11/1997	1) Common assault 2) Destroy or damage property (<$2,000)	1) Fixed term - 12 weeks and 6 days imprisonment 2) Fixed term - 12 weeks and 6 days imprisonment
15/01/1998	1) Fail to appear	1) Fixed term - 18 days imprisonment
11/02/1998	1) Assault officer in execution of duty 2) Goods in personal custody reasonably suspected being stolen	1) Fixed term - 4 months imprisonment 2) Fixed term - 4 months imprisonment
13/10/1998	1) Larceny value ($2,000) 2) Larceny value ($2,000) 3) Larceny 4) Possess prohibited drug 5) Possess prohibited drug 6) Goods in personal custody reasonably suspected being stolen	1) Fixed term - 6 months imprisonment 2) Fixed term - 6 months imprisonment 3) Fixed term - 6 months imprisonment 4) Fixed term - 6 months imprisonment 5) Fixed term - 6 months imprisonment 6) Fixed term - 6 months imprisonment
7/10/1999	1) Possess prohibited drug 2) Possess prohibited drug	1) Fined $500, court costs $52 2) Fined $200, court costs $52
11/01/2000	1) Possess prohibited drug 2) Larceny 3) Goods in custody 4) Goods in custody 5) Goods in custody 6) Larceny 7) Administer prohibited drug 8) Larceny 9) Larceny 10) Goods in custody 11) Break, enter and steal 12) Possess car breaking implements	1) Rising of the court 2) Rising of the court 3) Fixed term - 6 months imprisonment 4) Fixed term - 6 months imprisonment 5) Fixed term - 6 months imprisonment 6) Fixed term - 6 months imprisonment 7) Fixed term - 6 months imprisonment 8) Fixed term - 6 months imprisonment 9) Fixed term - 6 months imprisonment 10) Fixed term - 6 months imprisonment 11) Minimum term - 9 months, additional term 3 months 12) Minimum term 9 months, additional term 3 months
4/08/2000	1) Possess implements to enter/drive conveyance 2) Goods in personal custody reasonably suspected being stolen 3) Escaped custody	1) 6 months imprisonment 2) 6 months imprisonment 3) 6 months imprisonment
29/10/2001	1) Larceny value (<$2,000)	1) Fined $1,000, court costs $58
7/02/2002	1) Obtain money etc by deception (<$2,000)	1) Fined $600, court costs $58
28/03/2002	1) Possess prohibited drug 2) Self-administer/attempt to self- administer prohibited drug	1) Fined $300 2) Fined $300
28/06/2002	1) Possess prohibited drug 2) Self-administer/attempt to self- administer prohibited drug	1) Fined $200, court costs $58 2) Fined $200
19/06/2003	1) Use etc offensive weapon with intent to commit indictable offence 2) Break and enter building (steal) value (<$15,000) 3) Assault police officer in execution of duty without actual bodily harm 4) Break and enter building (steal) value (<$15,000) 5) Break and enter building (steal) value (<$15,000)	1) See below for indictable offences 2) Indicted, 4 years imprisonment with 2 years 6 month non-parole period (severity appeal lodged) 3) 18 months imprisonment with 9 month non-parole period 4) Indicted, taken into account on Form 1 5) 4 years 6 months imprisonment with 2 years 6 month non-parole period (severity appeal lodged)
25/07/2003	1) Make/furnish a statement which is false/misleading	1) Taken into account on Form 1 at Sydney District Court on 19/06/2003
7/06/2004	Appeal to NSW Court of Criminal Appeal of sentence on 19/06/2003: 1) Break and enter building (steal) value (<$15,000) 2) Assault police officer in execution of duty without actual bodily harm 3) Break and enter building (steal) value (<$15,000)	1) Appeal allowed, substitute 4 years imprisonment with 2 years 3 month non-parole period 2) Appeal dismissed 3) Appeal allowed, substitute 4 years imprisonment with 2 years 3 month non-parole period
6/08/2004	1) Break and enter building (steal) value (<$15,000) 2) Break and enter building (steal) value (<$15,000)	1) 3 years 4 months imprisonment with 2 years 6 month non-parole period 2) 12 months imprisonment
1/10/2004	1) Possess housebreaking implements 2) Fail to appear in accordance with Bail granted undertaking 3) Receive/dispose stolen property- min. Indictable offence (<$5,000) 4) Break and enter building (steal) value (<$15,000) 5) Goods in personal custody reasonably suspected being stolen	1) 6 months imprisonment 2) 6 months imprisonment 3) 6 months imprisonment 4) 12 months imprisonment 5) 6 months imprisonment
29/08/2005	1) Break and enter building (steal) value (<$15,000)	1) 2 years imprisonment
18/10/2007	1) Possess housebreaking implements 2) Enter prescribed premises of any person without lawful excuse	1) 6 months imprisonment 2) Fined $200, court costs $70
10/02/2010	1) Possess prohibited drug 2) Possess housebreaking implements 3) Break and enter house etc (steal) value (<$15,000) 4) Possess housebreaking implements 5) Break and enter house etc (steal) value (<$15,000)	1) 6 months imprisonment (severity appeal lodged) 2) 6 months imprisonment (severity appeal lodged) 3) 12 months imprisonment, $1,850 compensation (severity appeal lodged) 4) 6 months imprisonment (severity appeal lodged) 5) 18 months imprisonment with 12 month non-parole period (severity appeal lodged)
11/03/2010	Appeal to Sydney District Court in respect of conviction on 10/02/2010: 1) Possess housebreaking implements 2) Possess prohibited drug 3) Possess housebreaking implements 4) Break and enter house etc (steal) value (<$15,000) 5) Break and enter house etc (steal) value (<$15,000)	1) Conviction confirmed 2) Conviction confirmed 3) Conviction confirmed 4) Conviction confirmed 5) Conviction confirmed, substitute 10 month non-parole period
4/03/2013	1) Special category driver drive with special range Prescribed Concentration of Alcohol	1) Fined $400, court costs $83, disqualified for 6 months
24/06/2013	1) Special category driver drive with special range Prescribed Concentration of Alcohol	1) Fined $150, disqualified for 3 months (severity appeal lodged)
25/07/2013	1) Special category driver drive with special range Prescribed Concentration of Alcohol	1) No conviction section 10 Good Behaviour bond, reside at specified address for 18 months
11/12/2014	1) Drive with middle range Prescribed Concentration of Alcohol - 1st offence	1) Fined $1,000 disqualified for 9 months
18/07/2017	1) Enter enclosed land not prescribed premises without lawful excuse	1) Fined $275
1/12/2017	1) Enter enclosed land not prescribed premises without lawful excuse 2) Break and enter house etc (steal) value (<$60,000) 3) Drive with middle range Prescribed Concentration of Alcohol - 2nd offence 4) Drive motor vehicle while licence suspended - 2nd offence 5) Drive with high range Prescribed Concentration of Alcohol - 2nd offence 6) Negligent driving (no death or grievous bodily harm) 7) Not give particulars to other driver 8) Drive motor vehicle while licence suspended - 2nd offence	1) Section 10a conviction with no other penalty, $500 compensation 2) Aggregate 12 months imprisonment with 6 month non-parole period 3) Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months, alcohol interlock program 24 months 4) Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 12 months 5) Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months, alcohol interlock program 48 months 6) Section 10a conviction with no other penalty 7) Section 10a conviction with no other penalty 8) Aggregate 12 months imprisonment with 6 month non-parole period, disqualified for 6 months