Blyde and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1568

Blyde and Minister for Immigration and Border Protection (Migration) [2017] AATA 1568 (28 September 2017)

Division:General Division

File Number:2017/4079          

Re:Kerry Blyde  

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

Decision

Tribunal:Mr P W Taylor SC, Senior Member

Date:28 September 2017

Place:Sydney

The decision under review is affirmed.

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

Mr P W Taylor SC, Senior Member

Catchwords

IMMIGRATION AND CITIZENSHIP – mandatory visa cancellation – special category visa - failure to pass character test – substantial criminal record – term of imprisonment of 12 months or more – Ministerial Direction no 65 applied – protection of the Australian community - community expectations – risk of future offending and harm - other considerations – decision affirmed

Legislation

Criminal Code Act 1995 (Cth), pt 9.1, ss 301.4, 301.5

Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Drug Misuse and Trafficking Act 1985 (Cth), ss 10, 21, 25, 29, 30, 21, sched 1
Migration Act 1958, (Cth) ss 5, 5M, 36, 499, 500, 501, 501CA

Telecommunications (Interception and Access) Act 1979 (Cth), s 5D

Cases

Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999

Yildirim v Minister for Immigration and Border Protection [2017] AATA 1353

Secondary Materials

Direction no 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Mr P W Taylor SC, Senior Member

1. Mr Blyde is a 47 year old New Zealand national.  At the age of 36, he obtained a special category visa, came to Australia in about January 2007, and took up a position as a business analyst with the Commonwealth Bank of Australia.

2. Not long after coming to Australia Mr Blyde began occasional use of “ice” - a prohibited drug known to him as “crystal meth”.  His use of that drug became regular, at least monthly, by about January 2010.  Subsequently his drug use ultimately led to the commission of various offences, to convictions for drug supply in April 2015 and December 2016, and to a 13 month period of incarceration.  (The material dates and details of Mr Blyde’s offences, convictions, sentences and incarceration, are briefly summarised in the Schedule to these reasons.)

   Visa cancellation and non revocation

3. Mr Blyde’s 2 December 2016 conviction, at a time when he was still in custody serving the non-parole segment of his 27 month sentence of imprisonment, triggered the operation of Migration Act 1958 (“MigAct 1958”) s 501(3A). That provision required the Minister to cancel the visa of a non-citizen prisoner if the person did not satisfy “the character test” in MigAct 1958 s 501(6). Mr Blyde necessarily failed that character test - because he had been sentenced to more than a 12 month term of imprisonment:- see MigAct s 501(7)(c).

4. Despite the mandatory obligation imposed by MigAct 1958 s 501(3A), a disappointed visa holder can make representations to have the cancellation revoked. The relevant threshold criterion for the exercise of the revocation power is satisfaction that either (i) the person in fact “passes the character test” or, (ii) there is “another reason why the original decision should be revoked”:- see MigAct 1958 s 501CA(4).

5. Mr Blyde made revocation representations on 22 December 2016. But a Ministerial delegate’s decision of 10 July 2017 refused to revoke the visa cancellation. Such a refusal decision, when made by a delegate (but not the Minister) is reviewable by the Tribunal:- see MigAct 1958 s 500(1)(ba). Mr Blyde made a review application on 13 July 2017.

   Ministerial direction 65

6. The widely stated discretion conferred by MigAct 1958 s 501CA(4)(b)(ii), whether exercised by a Ministerial delegate or this Tribunal, is subject to the discipline of compliance with any applicable Ministerial direction:- MigAct 1958 s 499(1)&(2A). The relevant direction is “Direction no 65 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”).

7. Direction no. 65 has two sections. Section 1 is a preliminary section. It contains a Preamble that (i) details the objectives of the relevant MigAct 1958 provisions, (ii) provides a statement of general guidance for decision makers exercising the MigAct 1958 powers, and (iii) sets out principles described as providing “a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation” of a person’s visa. Section 2 of Direction no. 65 deals more specifically with the exercise of the relevant decision making power. It requires decision makers to act in a manner “informed by the principles” and take into account specific considerations. Part C of Section 2 sets out the considerations to which regard must he had in determining whether or not to revoke a mandatory visa cancellation. It differentiates between “primary” and “other” considerations.

8. The stated “primary” considerations, which “should generally” be given greater weight than “other” considerations, are . 

   (a)the protection of the Australian community

   (b)the best interests of minor children in Australia, and

   (c)the expectations of the Australian community. 

9. The five potentially relevant “other” considerations are:-

   (a)applicable international non-refoulement obligations

   (b)the strength, nature and duration of the person’s Australian ties

   (c)the impact of visa cancellation on Australian business interests

   (d)the impact of the decision on victims of the person’s conduct

   (e)the nature and extent of any difficulties the person is likely to encounter if removed from Australia as a result of the visa cancellation decision.

10. The general guidance part of the Direction no. 65 Preamble declares commitment to protection of the Australian community from “harm as the result of criminal activity … by non-citizens”.  It describes the principles as being of “critical importance” in furthering that objective, and states that they “reflect community values and standards” to be taken into account in “determining whether the risk of future harm from a non-citizen is acceptable”. 

11. The principles set out in the Direction no. 65 Preamble begin with an emphasis on the privilege involved in a visa grant, and the corresponding expectation that visa holders will be law abiding and not cause harm in or to the Australian community.  There is a clearly stated principle of community expectation.  It is that a visa should be cancelled if the holder has committed “serious crimes”.  That principle appears to be given a special emphasis where the serious crime is of a violent or sexual nature. It is certainly given emphasis where the offence victim is a minor, or an elderly or disabled person.  Nevertheless, the principles contemplate some permissible tolerance of criminal conduct.  The degree of tolerance is stated to be “low” where the visa holder’s Australian community presence has been “only for a short period of time”.  It is permissibly, but imprecisely, higher, where the person has lived in Australia since an early age, or for most of their life.  The permissible tolerance, in any particular instance, will depend on impressions about whether the nature of apprehended future harm is so serious that “any risk of future similar conduct in the future is unacceptable” and not able to be countervailed by any other considerations.  The other considerations to which must be had in forming impressions of that kind include the person’s contribution to the Australian community, and the consequences of visa cancellation on the person’s immediate family members and minor children.

    The protective consideration

12. Part C of Direction no. 65 does not explicitly stipulate “low tolerance” of criminal conduct in the exercise of the revocation discretion. But it is a sentiment expressed in the principles, and is implicit in the mandatory cancellation of the visa held by a prisoner who has “a substantial criminal record” (as defined in MigAct 1958 s 501(7).) It is also implicit in the way in which Direction no. 65 expresses the “expectations of the Australian community”:- see paragraph 22 below.

13. Limited tolerance of criminal conduct is a corollary of the protective commitment declared in both the General Guidance provided in cl 6.2 of Direction no. 65, and the mandated primary consideration set out in cl 13.1.  That consideration requires regard to both the “nature and seriousness” of the person’s past criminal conduct and to “the risk to the Australian community”.

14. The touchstone for the appropriate and meaningful characterisation of criminal conduct as “serious” is elusive. Some parts of Direction no. 65 use the disjunctive expression “criminal activity or other serious conduct” and appear to suggest, perhaps not unreasonably, that all criminal activity should be regarded as “serious”:- see eg., cl 6.2(1), 6.3(5), 6.3(6); 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). On the other hand, other parts of the Direction no. 65 deliberately use the expression “serious crime” - and implicitly disavow any such necessary suggestion:- see eg., cl 6.3(2), 6.3(3). There is no definition of “serious crime” in the interpretation annex to Direction no. 65. The annex does however include the term “substantial criminal record”, and adopts the statutory definition in MigAct 1958 s 501(7) - a definition that includes an offence for which a person has been sentenced to at least 12 months imprisonment.

15. Mr Blyde’s 9 April 2015 drug supply conviction was for an offence under s 25(1) of the (NSW) Drug Misuse and Trafficking Act 1985 (“DMTA 1985”). That offence, and two other drug possession charges taken into account in the sentencing, involved his possession of three prohibited drugs - Gamma butyrolactone (“GBL”), 1,4 butanediol, and methylamphetamine. The approximately 120g quantity of GBL exceeded a “traffickable quantity” and was statutorily deemed, in the absence of proof to the contrary, to be in his possession for the purposes of supply:- see DMTA 1985 s 29.  The 120g amount also exceeded an “indictable quantity”, but was less than a “commercial quantity”).  In those circumstances Mr Blyde’s supply conviction offence was punishable by a maximum imprisonment term of 15 years:-  DMTA 1985 ss 25, 30, 31 & Schedule 1.  Mr Blyde’s possession of the lesser quantities of the other two drugs, and the circumstances relating to his possession of them, involved offences punishable by a maximum two year term of imprisonment:-  DMTA 1985 ss 10 & 21.

16. Mr Blyde’s 2 December 2016 drug supply conviction was also for an offence under DMTA 1985 s 25(1). It involved his possession of 10.42 grams (ie., about eight times an “indictable” quantity”) of 3,4 methy(le)nedioxyamphetamine (“MDMA / MDA”). He also had “indictable” quantities of two other prohibited drugs - GBL (126g - more than twice an “indictable” quantity) and meth(yl)amphetamine (6.83g - slightly more than an “indictable” quantity). His possession of those quantities of those drugs also involved supply offences under the DMTA 1985 provisions. All three of those supply offences were punishable by a maximum 15 year term of imprisonment. Mr Blyde also had a small quantity of ketamine, another prohibited drug. That circumstance involved a drug possession offence which, with the other two supply offences, was taken into account in his sentence.

17. Although Direction no. 65 does not define the expression “serious crime” the similar expression “serious Australian offence” is utilised in MigAct 1958 ss 5M, and 36(1C)(b) & 36(2C)(b). That expression is defined, in MigAct 1958 s 5, as including a “serious drug offence” (a term not itself otherwise defined) to which a three year imprisonment sentence (at least potentially) applies. Where a protection visa applicant has committed such an offence, those provisions provide a ground on which the Minister may refuse the protection visa application.

18. The terms “serious offence” and “serious drug offence” are expressions used in the Telecommunications (Interception and Access) Act 1979 (“TIA Act”) ss 5D(2)&(5A). They are the criteria for offences where telecommunication interception warrants may be issued. For the purposes of the TIA Act the term “serious offence” relevantly includes offences that are punishable by a maximum of seven years imprisonment and involve (amongst other things) trafficking in substances that are either (i) psychotropic substances, for the purposes of the Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 (Cth), or (ii) controlled substances, for the purposes of Part 9.1 of the Criminal Code (ie., the Schedule to the Criminal Code Act 1995 (Cth)). The term “serious drug offence”, as defined in the TIA Act includes, amongst other things, offences against section 302 in Part 9.1 of the Criminal Code. That provision involves trafficking of “controlled” drugs (ie., those listed in Schedule 3 of the Criminal Code Regulations 2002 (Cth)).

19. In paragraph 16 above, in referring to the two amphetamine style drugs, I adopted the spelling that reflects the contents of the relevant DMTA 1985 Schedule of prohibited drugs. Assuming the accuracy of that spelling adjustment, both of those two drugs, and GBL, were “controlled drugs” and “prescribed substances” for the purposes of the TIA Act. In addition, the quantities in Mr Blyde’s possession were “trafficable” quantities, for the purposes of the Criminal Code provisions. Possession of such quantities of those drugs is, in the absence of proof to the contrary, taken to be trafficking in a controlled drug, for the purposes of the Criminal Code. Trafficking in a “controlled” drug involves an offence that is potentially punishable by a term of imprisonment of up to 10 years:- see Criminal Code s 301.4 & 301.5. Offences of those kinds are classified as “serious drug offences”, and “serious offences” for the purposes of the TIA Act ss 5D(2) & (5A).

20. The terms “criminal activity” and “serious crime” used in Direction no. 65 ought not be restricted by statutory definitions in legislation addressing other topics.  But because both terms suggest a broad connotation, their intended scope is permissibly informed by the usage and meaning of analogous terms.  When regard is had to the particular nature of Mr Blyde’s drug supply convictions and offences, and the length of the imprisonment terms that the offences potentially attract, it is tolerably clear that the nature of both sets of offences readily merit characterisation as “serious” for the purpose of the consideration required by Direction no. 65.  This is the particularly appropriate characterisation of the 19 November 2015 offences that resulted in Mr Blyde’s 27 month custodial sentence.  Moreover, those offences reveal an apparently significant increase in his offending, and they occurred not long after he had been dealt with for the February 2013 offences, and within months of the July 2015 completion of the community service sentence those offences attracted.

    Community expectations

21. Direction no. 65 postulates a high standard in relation to the expectations of the Australian community. This is evident in the principle statement that a visa is granted as a privilege in the expectation of the holder’s future compliance with Australian law, respect for its institutions, and harmlessness to its people and community:- see cl 6.3(1).  It is reinforced by the additional principle statement that a visa should be refused (or cancelled) where the person has committed “serious crimes” in Australia:-  see cl 6.3(2).

22. The imperative implicit in the use of “should” in cl 6.3(2) is expressed in the context of a description of community expectation.  As such, and in the context of the other statements of principle, it is not an inflexible direction which supplants the consideration, that Direction no. 65 otherwise requires, of the totality of primary and other considerations.  Nevertheless the potential significance of community expectation as an important primary consideration is patent in the content of cl 13.3.  It is in the following terms:-

    13.3 Expectations of the Australian community

    (1)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.

23. The potential generality of, and the diversity within, the concept of community expectations has provoked consideration, in other decisions, of the impressionistic nature of the assessment involved, and the weight that may permissibly be accorded to matters that are not susceptible to logical proof or evidentiary demonstration.  In Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999 at [60] to [72] DP Forgie reviewed the background to the present content of cl 13.3, the principles governing the exercise of the statutory discretion to which it relates, and the overall structure of Direction no. 65. The thrust of DP Forgie’s analysis appears to have been that cl 13.3 was intended to articulate a particular expectation, rather than to give scope to a generality and diversity of expectations. Such an intention is perhaps evident in the contrast between the heading to cl 13.3 (with its reference to “expectations”) and the first sentence of cl 13.3 (which states a single expectation of lawful conduct). But the emphasis suggested by that contrast is only one of at least four significant aspects of this part of Direction no. 65. The second is that, despite the preceding emphasis, cl 13.3 eschews the inflexible refusal of visa status, even in the case of convictions. The third is that it nevertheless contemplates the refusal of visa status, because of the nature of a particular offence and, inferentially, even in the absence of apprehensions of unacceptable risk of repetition of the offending conduct. The fourth is the opaque requirement, in the last sentence, that decision makers “should have due regard to the Government’s views in this respect.”

24. That last sentence is properly to be regarded as an emphasis of the possibility recognised in the sentence that precedes it. That preceding sentence, with its recognition of what “may be appropriate” points the decision maker back (consistent with the views expressed by DP Forgie in Rabino) to due regard to all the considerations required by the general guidance and principles set out earlier in the direction.  They contain, as I have indicated, a requirement to have regard to the expectation of lawful conduct by visa holders.  The last sentence in cl 13.3 is not to be taken as elevating that expectation of lawful compliance to the status of a necessarily determinative consideration.  Nor is it to be taken as demanding acquiescence to the decision under review.  The clear and deliberate reference in the last sentence is to the “Government’s views”.  They are the views expressed at least in the Direction itself, and may include those contained in a similarly declarative instrument:-  see Yildirim v Minister for Immigration and Border Protection [2017] AATA 1353. Those views are (or are likely to be) expressed at a level of generality - in the sense that they are intended to apply to any revocation representation decision. There is no context that requires the last sentence in cl 13.3 to be understood as a reference to either the decision of a Ministerial delegate, or to any views that such a delegate has expressed, in their decision reasons, about the status and circumstances of the particular non-citizen who has made representations about their visa cancellation.

1. At a general level, Direction no. 65’s statement of community expectation conveys the likelihood that a visa holder’s criminal offences will point towards the appropriateness of not revoking a mandatory cancellation under MigAct 1958 s 501(3A). That indication is modified by the emphasis, in other parts of the Direction, on “serious crime” (see paragraph 14 above).  Where the visa holder’s offences properly merit description as “serious”, and have increased in number and gravity - as they have in Mr Blyde’s case - the indication will be stronger.  Even so, Direction no. 65 requires consideration of all relevant primary (and other) considerations.  Consequently, it is necessary to return to the protective purpose of the revocation discretion, and to the acceptability of any risk of harm associated with Mr Blyde’s continued Australian presence.

   The risk of future offending and harm

2. Mr Blyde pointed to a number of matters with a view to providing satisfaction that there was no significant risk of his future offending.  They included:-

   (a)workplace difficulties in late 2011 and early 2012 that resulted in treatment for depression and anxiety, and a substantial period of time of work)

   (b)the September 2012 breakdown of a domestic relationship with a partner of five years, and subsequently increased drug use

   (c)serious physical illnesses (diagnosed in May 2013) that also required extensive treatment and involve ongoing medication

   (d)the distress and anxiety associated with a home invasion to which he was subjected in May 2014, and his subsequent experience, whilst in custody after November 2015, of being a prosecution witness who was confronted and threatened by the accused

   (e)the forcible execution of a search warrant at his apartment in July 2014

   (f)the forced sale of his apartment, as a result of financial difficulties he began to experience by late 2014

   (g)the CBA’s March 2015 termination of his employment, as a result of the circumstances involved in his February 2013 offences

   (h)his asserted good behaviour, both in prison (between November 2015 and December 2016) and in immigration detention (since December 2016) - despite both the absence of meaningful rehabilitation courses being available to him, and what he asserted was the surprisingly ready availability of drugs in both places

   (i)the positive rehabilitative prospects acknowledged by the judge who imposed his December 2016 custodial sentence

   (j)the asserted support of friends who are aware of his offending and personal circumstances

   (k)the salutary lesson he claims has been provided to him by his conviction, and incarceration.

3. As an amplification of his asserted rehabilitation, Mr Blyde emphasised his drug abstinence since November 2015.  He also pointed to roles he had undertaken whilst in immigration detention - as a barista (in the centre’s coffee shop), and librarian (in the community library).  He claims to have become well liked and respected by both fellow immigration detainees and centre personnel.

4. Mr Blyde’s aspirations, and the limited opportunities he has availed himself of during his confinement since November 2015, are not without a degree of credibility.  In addition, the misfortunes he has suffered are significant - particularly the loss of his well paid employment with a major financial institution, and the apparent consequential and total dissipation of his financial resources.  On the other hand, the serious health issues that arose in May 2013 were, as he concedes, the result of his drug taking - and yet they appear to have had no impact in deflecting him from subsequent and escalating drug use.  It may be that Mr Blyde’s additional misfortunes since November 2015 have added to his insights and enhance the credibility of his asserted current resolve.  But the apparent credibility of that resolve, and the significant obvious motivation underlying it, are one thing.  Pragmatic assessment of the likelihood of its execution, and of the absence of an unacceptable risk of re-offending, is another.

5. Direction no. 65 requires any assessment of a person’s risk of re-offending to address all available information, and to give appropriate weight to “independent and authoritative sources”:- cl 8(2) & 13.1.2(2).  In Mr Blyde’s circumstances the principally significant information that merits the latter characterisation consists of the following:-

   (a)the 6 August 2014 report of a consultant psychiatrist (Dr Peter Sternhell) that was relied on for the purposes of his April 2015 sentencing

   (b)the 12 February 2015 case note report by a community corrections officer, Ms Thomasen, of Mr Blyde’s attendance at the Leichhardt Community Corrections office, as part of the pre-sentence report process relating to his February 2013 offences

   (c)an 18 March 2015 pre-sentence report by a community corrections officer, Ms Moss

   (d)the 2 November 2016 case note report by a corrective services psychologist, Ms Buchanan

   (e)a 17 November 2016 pre-sentence report by another corrective services officer, Mr Scott Hill

   (f)the 1 December 2016 report by Dr Richard Furst, a consultant forensic psychiatrist, that was relied on for the purposes of Mr Blyde’s sentencing on 2 December 2016

   (g)the remarks of the sentencing judge on 2 December 2016.

6. Dr Sternhell’s August 2014 report appears to be part of the assessment process that Mr Blyde later described at the 12 February 2015 interview.  In his report Dr Sternhell recounted a history of Mr Blyde’s workplace difficulties and the relationship breakdown in September 2012, his initial return to work in 2013, and subsequent HIV diagnosis and further work incapacity - apparently continuing up until a recent return to part-time work (at a rate of 8 hours a week).  Dr Sternhell also referred to the May 2014 home invasion incident.  He noted that this incident, and its aftermath, had rekindled the anxiety and depression Mr Blyde had been experiencing for a number of years.  But he also recorded Mr Blyde’s subjective impression that his anxiety had recently settled and that his depression was starting to improve.  After recounting some details of Mr Blyde’s personal and family background, and noting that during his periods of work incapacity he had been financially supported, Dr Sternhell opined that Mr Blyde was gradually improving and that his anxiety had lessened considerably.  Dr Sternhell’s report noted that Mr Blyde was currently using an antidepressant, and recommended that he continue both that medication and social work counselling that he had been receiving.  Finally Dr Sternhell recorded having discussed with Mr Blyde the importance of avoiding socialisation with other people who were drug users.

7. Ms Thomasen’s 12 February 2015 case note report was primarily a record of information Mr Blyde provided at this initial pre-sentence report interview.  As such it does not fall strictly within the category of independent and authoritative information.  However, it does provide context relevant to an assessment of the risk of Mr Blyde’s re-offending.

8. Mr Blyde gave Ms Thomasen details of his personal, family and educational background.  He told her that he was in the process of selling his Waterloo apartment and was planning to move to a new area.  He disclosed his previous diagnoses for anxiety and depression, resulting in a substantial period off work in 2012.  He said the CBA had been particularly supportive during his illness related times off work, and was aware of the drug charges he was facing.  He claimed to have supportive friends.  He said he had been attending Narcotics Anonymous meetings three times a week, and found it helpful.  In an apart allusion to consultations with Dr Sternhell, he said he had been assessed as having good resilience and not requiring any further intervention.  Consistent with that account, said he was then no longer taking any anti-depressant medication.  In a final section of the note there was a reference to discussion about the impact of drug use on the community.  That part of the note attributed to Mr Blyde acknowledgement of having reflected on his drug use, disassociated himself from the other people involved in the 13 February 2013 offences, and taken steps to alter his life. 

9. Ms Moss’s March 2015 pre-sentence report noted Mr Blyde’s account of drug use starting in 2007, its escalation to daily and unmanageable use of “crystal meth” in 2009, and escalating (but undetailed) drug use following the September 2012 breakdown of his domestic relationship.  However, Ms Moss also attributed to Mr Blyde a claim to have stopped using “crystal meth” in August 2014, and to be attending support groups and engaging in individual counselling.  Ms Moss noted the contents of Dr Sternhell’s report and opined that Mr Blyde appeared to have an appropriate level of insight into his offending behaviour and his personal responsibility to effect a change in that regard.  She opined that his interaction with community services in the pre-sentencing assessment process appeared to have had a “salutary effect”.  She recounted Mr Blyde’s report of having had ceased all illicit drug use and being in the process of reviewing his associates with a view to maintaining that abstinence.  Ms Moss also reported the result of an actuarial risk assessment tool that took into account a history of drug dependence, emotional and personal problems.  Without detailing either how that assessment tool had been applied, or how its results should be interpreted, Ms Moss reported that it provided a re-offending risk assessment for Mr Blyde that was in the “low - medium” category.

10. Ms Buchanan’s 2 November 2016 case note report also took into account the history contained in Dr Sternhell’s report.  She noted Mr Blyde’s significant history of drug use, although her account differed somewhat from that of Ms Moss, in that she described an increase to weekly methylamphetamine use in 2009, and daily use in 2011.  Ms Buchanan’s note also differed from other accounts in that it reported that Mr Blyde had first been diagnosed with depression and anxiety in 2010.  Her report was primarily directed at the circumstances of Mr Blyde’s indecent exposure offence, and assessing its significance for sentencing purposes.  Ms Buchanan was aware that Mr Blyde had been found naked and asleep in a public park.  She opined that the offence lacked any clear sexual motivation and had no apparent intended victim.  She effectively regarded the offence as one of little significance.  In relation to Mr Blyde’s risk of re-offending, Ms Buchanan referred to the same actuarial tool that Ms Moss reported having used.  She recounted that Mr Blyde’s risk of re-offending was “in the medium range”.  There is nothing in the detail of her report to indicate whether that was an assessment based on a re-application of the tool, or even whether the slightly different wording from Ms Moss’ report was significant.

11. Mr Hill’s 17 November 2016 pre-sentence report was primarily directed at Mr Blyde’s potential suitability for a community service order sentence.  It was stated to be based on interviews with Mr Blyde, contact with his friends, Ms Buchanan’s review, details of Mr Blyde’s offences, and his later conduct whilst in custody.  Mr Hill’s, admittedly brief, account of Mr Blyde’s drug taking history again differed from that of Ms Moss.  He recounted drug use starting in 2009, and escalation to daily use only after March 2015, when Mr Blyde lost his CBA employment.  However, a following part of the report involved attributing to Mr Blyde recognition of an addiction “to the lifestyle of drug use”.  Mr Hill again referred to the actuarial risk assessment tool that had featured in Ms Moss and Ms Buchanan’s earlier reports.  However on this occasion Mr Hill identified four factors material to the assessment.  Two of them were the same as those identified by Ms Moss (drug problems and personal / emotional difficulties).  Two were additional - “education / employment”, and “attitude / orientation”.  The re-offending risk thrown up by the assessment tool was said to be “medium” - but again there were no meaningful details in the report as to the precise significance of that assessment result, and the extent to which, if at all, it accurately took into account the totality of Mr Blyde’s own personal circumstances.

12. Dr Furst’s 1 December 2016 report was an apparently comprehensive review that took into account Dr Sternhell’s August 2014 report, the circumstances of the November 2015 offences, Mr Blyde’s loss of employment in March 2015, numerous character testimonials from Mr Blyde’s friends.  Dr Hurst also conducted an audio visual interview with Mr Blyde about a month before the date of his report.  Dr Hurst’s history placed the onset of Mr Blyde’s anxiety and depression at the time of his workplace difficulties in 2012 and, more particularly he identified severe depression and anxiety in the December 2012.  His symptoms thereafter were intermittent, but increasingly severe, and he recommenced taking anti-depressant medication in 2013.  Dr Furst noted the improvement that Dr Sternhell had referred to in his August 2014 report.  But he went on to describe how Mr Blyde had been re-traumatised by his experience in 2016 as a crown witness in connection with the May 2014 home invasion matter.

13. Dr Furst’s account of Mr Blyde’s drug use history also differs in some respects from that of Ms Moss.  Dr Furst recorded a history of occasional methylamphetamine use beginning in 2007, more frequent use (involving fortnightly small gram fractions) in 2012, and then escalating use of 1 gram per week.  It escalated even further after the May 2014 home invasion, and after Mr Blyde sold his Waterloo apartment in May 2015.  By the time of the November 2015 offences Mr Blyde was selling drugs to fund his own drug use.  He was in debt and had no-one to turn for support.

14. In response to specific questions he was asked to address, Dr Furst considered that Mr Blyde satisfied the diagnostic criteria for three mental disorders described in DSM-5 - (i) panic disorder, (ii) post traumatic stress disorder, and (iii) substance disorder, specifically methylamphetamine dependence.  Dr Furst opined that the first two disorders contributed to the “destructive life choices” Mr Blyde made in relation to his habitual use of methylamphetamine, and that this contribution mitigated the seriousness of his drug supply conduct at the time of his offences in November 2015.  Another significant opinion Dr Furst expressed was that ongoing incarceration was likely to have a detrimental effect on Mr Blyde’s mental health.  He also opined that Mr Blyde’s condition had been “destabilised in recent months by threats to his personal safety” (relating to his role as a crown witness).

15. Dr Furst opined that Mr Blyde “probably has a low-moderate risk of offending” - stemming from his current and past supply offences, the ongoing nature of his anxiety disorder, the severity of his methylamphetamine addition and the uncertainty of his work and accommodation prospects.  Dr Furst recommended that Mr Blyde remain under the care of a psychiatrist and that his mental health be monitored.  He also recommended a doubling of Mr Blyde’s anti-depressant medication.

    The December 2016 sentencing remarks

16. Mr Blyde heavily relied on parts of the sentencing judge’s remarks as supporting his claims about the unlikelihood of his re-offending.  The sentencing judge described Mr Blyde’s subjective circumstances, following his being dealt with for the February 2013 supply offence in, as “unusual and really quite tragic”.  A later passage suggests that what the judge had in mind was (i) the dramatic contrast between Mr Blyde then circumstances with his former status as a highly paid bank employee, and (ii) an impression that Mr Blyde’s “descent into drug use” had been principally contributed to by workplace stress.

17. A detailed review of the history contained in the various pre-sentence reports provides a reason to question the accuracy of the causal relationships that the sentencing judge’s comments appeared to reflect.  Several matters are relevant in that context.  The first is the notable inconsistencies in details of the timing and extent of Mr Blyde’s drug use, and the inference that the addiction Dr Furst described was established before his work place difficulties.  The second is the appearance that Mr Blyde’s depression and anxiety had substantially resolved by the latter part of 2014.  The third is that the assessments of Mr Blyde in early 2015 present him as a person with good insight into his drug offending, and both the means and motivation to abstain.  The fourth matter is that Dr Furst reported a deterioration in Mr Blyde’s psychiatric disorders as a result of events during his 2016 incarceration.

18. However the more important consideration, for present purposes, is not so much the causative explanations for Mr Blyde’s past offending, as the nature and extent of the risk of his re-offending.  In that regard, the sentencing judge’s remarks were informative, but tellingly guarded.  The judge noted that Mr Blyde

    had the opportunity by reason of his earlier conviction to rehabilitate and yet he did not take up that opportunity. I note that his psychologist opines that he is remorseful, which I accept, and he is not likely to reoffend. I am less convinced of his prospects of rehabilitation.  One would hope that a man with his ability would be able to rehabilitate but having failed in the past his prospects must still be guarded at this stage.”

19. Mr Blyde’s 27 month sentence reflected (i) a discount, for his early guilty plea, from the three year sentence the judge would otherwise have imposed, and (ii) regard to the five other offences in relation to which Mr Blyde acknowledged his guilt:- see Schedule 1 and the Crimes (Sentencing Procedure) Act 1999 (NSW) s 33(2).

20. The sentencing judge’s apprehensions about Mr Blyde’s risk of re-offending influenced the judge’s opinion that Mr Blyde “clearly … has need for drug rehabilitation”.  Significantly, the judge considered Mr Blyde needed “a longer period on parole to assist with that treatment”.  That opinion found tangible expression in the 13 month sentence balance, after the non-parole period ending on 18 December 2016.  Ordinarily a sentence balance could not exceed one third of the non-parole period, but there is a statutory discretion to exceed that restriction where a sentencing judge considers “special circumstances” apply:-  see the Crimes (Sentencing Procedure) Act 1999 (NSW) s 44(1)&(2). In Mr Blyde’s case the sentencing judge considered that he needed drug rehabilitation treatment, and effectively tripled the otherwise permissible balance of Mr Blyde’s sentence. (As the Schedule to these reasons indicates, even if Mr Blyde had not been released on parole in December 2016, he would still be five months short of completing the balance of his sentence.)

21. The sentencing judge was aware of some degree of support for Mr Blyde from his family and friends - although these were not detailed in either the judge’s comments or in Dr Furst’s 1 December 2016 report.  In the present proceedings there were supportive testimonials from eleven individuals.  Seven of those testimonials were dated between February and April 2015 and predated Mr Blyde’s November 2015 offences.  Consistent features of these testimonials were assertions that Mr Blyde’s February 2013 offences were “out of character”, that he had “immense remorse” and that he had acknowledged his mistakes and not been involved in further drug taking.  The main relevance of these testimonials, in the present context, is to demonstrate that dramatic contrast between the rehabilitative resolve Mr Blyde professed prior to April 2015, and the reality of his prompt and thorough departure from it.

1. There are five testimonials that appear to have been relied on for the purpose of the December 2016 sentencing.  Three were from New Zealand residents - his mother, a brother, and a friend.  All of these people offered support for Mr Blyde but, in reality had had little direct recent interaction with him, and appeared to have little knowledge of the extent of his drug taking. 

2. Another testimonial was a short letter from a friend who claimed to have known Mr Blyde for five years, but who appears to have been under the impression that Mr Blyde’s drug taking history was caused by work and financial pressures, particularly after Mr Blyde was “laid off” by the CBA.  Of course the reality was that Mr Blyde’s drug taking had been well established long before his work difficulties in the latter part of 2011, and were the reason for, rather than the result of, the CBA’s termination of his employment.

3. That same explanation, that Mr Blyde had been “laid off” by the CBA as a result of the depression caused by work pressures, was proffered by another of Mr Blyde’s testimonial referees.  This lady had known Mr Blyde for about 9 years and was apparently very supportive of him.  But she conceded having been “rarely exposed to the people he associated with” and had not been aware, at the time of his April 2015 sentencing, of his past history of drug taking.  She opined that Mr Blyde’s time in prison had “taught him some much needed lessons”.  However, and perhaps more significantly, for present purposes, she also opined that he “has appalling judgment when choosing some of his friends”.

4. A final supportive testimonial was provided by the person who had been Mr Blyde’s partner in the relationship that ended in September 2012.  Without referring to the drug taking lifestyle they had shared throughout the period of their relationship, this person attributed Mr Blyde’s “decline” wholly to the work pressures he had experienced.  He asserted that the change in Mr Blyde since his November 2015 arrest had been “vast and profound” - and cited Mr Blyde’s attendance at Narcotics Anonymous meetings as the main item of change that he had noted.  He opined that Mr Blyde’s chances of re-offending were “so low that it is not measurable” and declared his willingness to support Mr Blyde with “up front capital” in operating a mobile coffee van franchise.

   Conclusion on the protective consideration

5. The matters I have addressed earlier in analysing the nature of Mr Blyde’s offences, the penalties they potentially and actually attracted, suffice to characterise his offences as relevantly serious for the purposes of Direction no. 65.  This is particularly the appropriate characterisation of his November 2015 offences.

6. Similarly, Mr Blyde’s drug supply offences, at least those of November 2015, must be regarded as involving serious harm. That characterisation is not based on demonstrable hardship of any particular kind, or to any particular individual. Instead it is an inference to be drawn from the values reflected in the prohibitions contained in the DMTA 1985, and the serious penalties for which it provides. Those matters inherently reflect the community concern about the likelihood of significant harm resulted from illicit drug use. That inference may also readily be drawn from the tangible reality of the destruction of Mr Blyde’s own personal life and means - a destruction that is a foreseeably repeatable consequence (for other individuals) of the drug use encouraged by illicit drug supply.

7. The combined effect of the serious nature of Mr Blyde’s offences, and the harm to which supply offences of those kinds contribute, is to require, in the exercise of the revocation power, tolerance of only a low level of risk of its repetition.  But that low level of risk does not exist in the present case.  That conclusion is irresistible in the present case, in the light of the opinion of Dr Furst, and the remarks of the sentencing judge.  Both recognise Mr Blyde’s background of drug addiction, failed previous attempts at rehabilitation, and need for ongoing treatment and supervision, and the current uncertainty of his life prospects.  Those opinions are cogent and amply informed by awareness of the totality of the circumstances that influenced Mr Blyde’s offending.  Against that background of Dr Furst’s opinion and the sentencing judge’s remarks it is neither necessary nor appropriate to speculate about the precise meaning of the recidivism assessments produced by the actuarial tool referred to in the various pre-sentence reports, or about the reliability with which those actuarial assessments can be extrapolated meaningfully to take proper account of Mr Blyde’s personal circumstances.  The conclusion required by the sentencing judge’s remarks was that Mr Blyde’s risk of re-offending was sufficiently high to warrant characterisation of his circumstances as “special” in order to permit a much greater period of parole supervision than would otherwise apply.  It is a plain inference that Mr Blyde has a significant risk of re-offending.

8. That risk is not materially ameliorated or reduced by Mr Blyde’s asserted reliance on the support of his friends, and their variable understanding of the actual extent of his past drug taking, and over optimistic opinions about the significance of his asserted rehabilitative motivations.  The reality of the situation confronting Mr Blyde is that if he were to have his visa cancellation revoked, he would be in much the same financial and social situation as the one he faced in early 2015 after the loss of his employment with the CBA.  He was unable to support himself financially - despite having attempted to establish an IT related businesses as far back as the 2014 tax year - and rapidly and completely abandoned the rehabilitative resolve he had professed in the pre-sentence assessment process in which he had been engaged between February and April 2015.  The one arguably significant additional difference between then and the present is the prospect of his operating a mobile coffee van business.  But that is a prospect of a most uncertain kind - as brief questioning of Mr Blyde in the present proceedings instantly revealed.  He is uncertain about the actual costs involved, has not undertaken any real evaluation of the feasibility of such a proposal, has not had any meaningful interaction with any franchisor, and does not know whether his criminal convictions would contradict the likelihood of being able to obtain a franchise in any event.

9. Even without regard to community expectations, I would regard the kind of re-offending risk implicitly recognised in the December 2016 sentence as unacceptable for the purpose of the primary protective consideration articulated in Direction no. 65.  Regard to community expectations reinforces my view that the relevant primary considerations both point against revocation of the visa cancellation decision.  In a situation where Mr Blyde has committed repeated drug supply offences, done so for the purpose of providing the means for his own drug use, and done so after having had a previous rehabilitative sentence, the nature of those offences is itself inconsistent with retention of the privileged status of an Australian visa holder.

10. I am conscious that the conclusion I have just expressed may appear to jar with views expressed by the sentencing judge in December 2016. At the conclusion of his sentencing remarks the judge added an observational note that Mr Blyde was “a person with particular skills and could be useful in the Australian community”. The judge said that “if there is discretion to not deport him I would recommend it be exercised”. The latter remark suggests that the judge was unaware of either the mandatory visa cancellation provisions in MigAct 1958, the cancellation revocation power, or the obligation to comply with Direction no. 65 in the exercise of that power. In those circumstances the judge’s diffident recommendation is inadequate to detract from the conclusion at which I have arrived about the significance of the primary considerations relevant to Mr Blyde.

    other considerations - unsubstantiated matters

11. Mr Blyde has no children, and has no reason to apprehend persecution in New Zealand.  He had enjoyed a significant work role at a major financial institution.  But however competent and able he may once have been, and whatever such capacity he still retains, there is no reason to characterise his potential significance to Australian business as sufficiently substantial to weigh significantly against the primary considerations that I have addressed.

    Australian ties

12. Mr Blyde has lived and worked in Australia since January 2007.  The testimonial material I summarised earlier in these reasons indicate that he was competent and industrious in his work, at least until his illness at the latter part of 2011 and the ensuing substantial period during which he was unable to return to full time work.  In fact it is not at all clear (see paragraph 30 above) that he ever returned to full time work at the CBA, prior to his employment being terminated in March 2015.  The IT business Mr Blyde conducted in the 2014 and 2015 tax years appears, having regard to the income and expenses in his tax returns for those years, to have been modest in scale and, in practical terms, of no real significance. 

13. The testimonial material to which I have referred also suggests that Mr Blyde has a small number of Australian friends who would be prepared to support him, to some extent, if he were to regain his visa status.  But their number is small, and the real strength and sustainability of their relationship is uncertain - particularly having regard to the reality of his resort to escalating drug use and eventual drug supply to fund that use, after March 2015.  And, apart from Mr Blyde’s past employment, and his small current friendship base, there is no other evidence of any significant ties he has established in the Australian community.  Indeed, as a “non-protected” special category visa holder he would have only very limited eligibility for any Australian social security benefits.

    personal circumstances and Removal impediments

14. Mr Blyde is one of four children.  He has an elder half brother and sister who live in New Zealand, but with whom he has had no contact for many years.  He also has a younger brother, a former New Zealand police officer who provided a commendation letter at the time of Mr Blyde’s December 2016 sentencing.  But the relationship between them seems also to be slight.  Mr Blyde said he had not had any contact with his brother for about 10 years prior to the commendation letter I have referred to above.  His brother visited him in Villawood in early 2017, but he has not heard from him since and does not have any contact details for him.  Mr Blyde’s mother, a retiree in her mid 70’s lives in a small town near Hamilton in New Zealand.  Mr Blyde has maintained regular contact with her - at least since his November 2015 arrest.

15. Mr Blyde’s mother’s December 2016 letter to the District Court concluded with the statement that he had some very loyal friends in New Zealand and that he would be more than welcome to return to home, and would be supported with open arms.  Similarly, Mr Blyde’s brother’s testimonial said that he had good friends and family in New Zealand and would have a great support structure in place, if he were to return to New Zealand. 

16. The optimism expressed in those two testimonials may be questioned - having regard to the reality of Mr Blyde’s limited contact with his mother and brother over recent years.  But a broader understanding of Mr Blyde’s personal circumstances suggest a more likely basis for confidence that he would not be likely to face relevantly significant difficulty as a result of being required to return to New Zealand.  He is a New Zealand national.  It is where he was educated and where he worked successfully for twenty years, after leaving school at about age 15.

17. Mr Blyde’s original work experience was as a baker in and near Rotorua for about 8 years.  In that period he completed an apprenticeship as a cake and pastry chef, became the bakery manager at one of Rotorua’s bakeries, and arising out of that role, he later became involved in the management of a fast food business.  Somewhere around about 1994 Mr Blyde moved to Auckland and began to work for Mobil Oil, as a forecourt attendant at a service station.  He progressed from that role to the point where, at about the age of 27 he was a senior service station manager responsible for three service stations in the Auckland area.

18. In about 1998 Mr Blyde started working for ASB Bank Ltd in its Auckland call centre.  Over the next eight years he progressed from his initial role, as a call centre representative, to various roles as a trainer, and then ultimately as a business analyst.  By about 2006 his work title that of senior business analyst in the technology services area of the bank.

19. It is appropriate to recognise that most of Mr Blyde’s work skills and experience in recent year have been in technology and business processes rather different from his early work as a cake and pastry chef.  But the breadth of his work experience is a testimony to his ability and adaptability.  There is no reason to apprehend that his return to New Zealand would expose him to any significantly greater rehabilitative difficulties than he would experience in Australia.  Indeed there are reasons to incline towards the contrary conclusion - those reasons being (i) his family background and support, (ii) his New Zealand recognised trade qualifications, (iii) his lengthy work experience in New Zealand, and (iv) his eligibility, as a resident national, to social welfare support.

    Conclusion

20. The decision under review is affirmed.

I certify that the preceding 65 (sixty -five) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

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

Associate

Dated: 28 September 2017

Date(s) of hearing:	11 September 2017
Applicant:	In person
Solicitors for the Respondent:	Ms E Cannon, Clayton Utz

Schedule 1: Offences, convictions, sentences and incarceration