Corbett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Corbett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2501 (5 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2309
Re:Wade Corbett
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Linda Kirk
Date:5 July 2021
Date of written reasons: 26 July 2021
Place:Sydney

The Reviewable Decision dated 12 April 2021 to refuse to revoke the Mandatory Visa Cancellation Decision dated 15 May 2020 is set aside and in substitution the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is revoked.
.........................[SGD]...............................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – Direction 90 – primary considerations – protection of Australian community – best interests of minor children – expectations of Australian community – other considerations – impediments if removed from Australia – links to Australian community – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR and Minister for Home Affairs [2019] FCAFC 185
Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461
Jal v Minister for Immigration and Border Protection [2016] AATA 789
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
26 July 2021

Wade Douglas Corbett (‘the Applicant’) is a 30 year old citizen of New Zealand,[1] who first arrived in Australia on 14 December 2002.[2] On 3 May 2015, the Applicant was granted a Special Category (Class TY) (subclass 444) visa (‘the visa’).[3]
[1] Exhibit R1, G28 170.
[2] Exhibit R1, G10, 92, G14, 118, G16, 137.
[3] Exhibit R1, G12, 100.
On 15 May 2020 the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) (‘Mandatory Visa Cancellation Decision’) because a delegate of the Minister (‘the Respondent’) was satisfied he did not pass the character test in s 501(6) of the Act as he was considered to have, pursuant to subsection 501(7)(c), a ‘substantial criminal record’.[4] At the time the Applicant was serving a sentence of full-time imprisonment at Shortland Correctional Centre in New South Wales.[5]
[4] Exhibit R1, G12, 100-101.
[5] Exhibit R1, G12, 100-101.
On 1 June 2020, the Applicant made representations seeking revocation of the Mandatory Visa Cancellation Decision.[6] On 2 March 2021, the Applicant’s representative made further submissions in support of revocation.[7]
[6] Exhibit R1, G14, 111.
[7] Exhibit R1, G16, 136.
On 12 April 2021, a delegate of the Respondent decided, pursuant to s 501(CA)(4) of the Act, not to revoke the Mandatory Visa Cancellation Decision (‘the Reviewable Decision’).[8]
[8] Exhibit R1, G2 5-33.
On 21 April 2021, the Applicant applied to the Tribunal for review of the Reviewable Decision under subsection 500(1)(ba) of the Act.[9]
[9] Exhibit R1, G1, 1.
The matter was heard by the Tribunal on 21 and 22 June 2021. The Applicant attended the hearing by video-conference from Christmas Island Immigration Detention Centre and was represented. The following persons gave oral evidence by phone and video-conference, and were cross-examined at the hearing:
·the Applicant;
·Mr Tim Watson-Munro, psychologist;
·Vicki Corbett – the Applicant’s mother; and
·Kruz Corbett – the Applicant’s brother.
The material before the Tribunal consists of:
·Section 501G-Documents filed 23 April 2021 (G1-G35, Pages 1- 216) (‘Exhibit R1’);
·Respondent’s tender bundle of evidence filed 16 June 2021 (pages 1- 167) (‘Exhibit R2’)
·Statement of Kruz Vernon Corbett dated 30 May 2021 (‘Exhibit A1’)
·Statement of Vicki Marae Corbett dated 30 May 2021 (‘Exhibit A2’)
·Medical Report of Tim Watson-Munro dated 04 June 2021, with attached article of Brabeck, K.M. et al, ‘The psychosocial impact of detention and deportation on U.S. Migrant children and families’[10] (‘Exhibit A3’)
·Article by Professor David Nutt, ‘Estimating Drug Harms’[11] (‘Exhibit A5’)
[10] (2014) 84(5) American Journal of Orthopsychiatry 496-505.
[11] (Eve Saville Lecture, Centre for Crime and Justice Studies, King's College London, July 2009).
The Tribunal has reviewed all the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)    …; and
(b)
the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Paragraph 501(7) of the Act relevantly provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)…
(b)…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
…
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 90
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. The Direction must be applied by all decision-makers, except for the Minister acting personally, such as the Minister’s delegates and the Tribunal.[12]
[12] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
On 8 March 2021, the Minister signed Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[13]
[13] Direction, para 2-3.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a
decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
Paragraph 9 of the Direction identifies a non-exhaustive list of other considerations:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Links to the Australian community, including:
(i)Strength, nature and duration of ties to Australia; and
(ii)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, ‘… information and evidence from independent and authoritative sources should be given appropriate weight.’
Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’ That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[14]
[14] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Paragraph 7(3) states that ‘[o]ne 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]:
… 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.
ISSUES FOR DETERMINATION
Before the power in sub-section 501CA(4) of the Act to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by sub-section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[15] the Full Court of the Federal Court of Australia made the following observations in relation to sub-section 501CA(4):
... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[16]
[15] [2018] FCAFC 151.
[16] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
The issues for determination are:
1)whether the Applicant passes the ‘character test’; and
2)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background and employment
The Applicant was born in New Zealand in 1990.[17] He first entered Australia with his parents and two siblings on 14 December 2002 when he was aged 12 years.[18] His parents separated in his pre-adolescent years, and his father was incarcerated in 2013.[19] He last saw his father about seven years ago.[20]
[17] Exhibit R1, G28, 170.
[18] Exhibit R1, G10, 92, G14, 118, G16, 137.
[19] Exhibit R1, G17, 150.
[20] Exhibit A3, 3.
The Applicant completed primary school in Australia and then enrolled at the Umina High School but discontinued his schooling during year 7.[21] In a written statement dated 31 May 2020, the Applicant wrote that he found school ‘extremely difficult’ and he was not ‘able to concentrate’ and ‘felt embarrassed for not having the skills, knowledge and intelligence most kids had.’ He became a target for bullying by the other students due to his learning difficulties, cultural differences and appearance.[22]
[21] Exhibit A3, 4.
[22] Exhibit R1, G17, 149.
The Applicant later returned to secondary education and completed year 10 at Gosford TAFE College.[23] He continued to play football for Woy Woy Junior Rugby League Football Club for several years which he enjoyed, and he was a skilled player and well-liked.[24] However, his addiction to marijuana and ice started to intervene and he decided to quit.[25]
[23] Exhibit R1, G17 150; Transcript of proceedings dated 21 June 2021, 46.
[24] Exhibit R1, G17 150.
[25] Exhibit R1, G17, 150.
The Applicant worked as a bricklayer’s labourer for his uncle, and also with his brother who is a qualified barber.[26] After he left gaol in 2018, he worked with his brother four days a week cutting hair, at reception, and doing whatever else needed to be done.[27]
[26] Exhibit A3, 3; Transcript of proceedings dated 21 June 2021, 47.
[27] Transcript of proceedings dated 21 June 2021, 47.
Drug and alcohol use
The Applicant commenced smoking cannabis at the age of about 10 years, and by the age of 12 years he was using cannabis daily and ecstasy on weekends.[28] He first smoked crystal methylamphetamine (ice) at the age of 14 years, and by the age of 15 years he was using ice and cannabis on a daily basis.[29] During the early stages of his addiction he was able to participate in daily activities, but once he turned 18 years he ‘started partying, hard.’ His father gave him money and when his father was not around he would steal money from his mother who did not know about his addiction and did not want him to take drugs.[30]
[28] Transcript of proceedings dated 21 June 2021, 32.
[29] Exhibit R1, G7, 58.
[30] Exhibit R1, G17, 150.
The Applicant commenced taking cocaine when he was aged 16 years and steroids when he was aged around 21 years.[31] At its peak, he was using one to two grams of ice per week and would smoke meth ‘heaps’.[32] He could be sleep deprived for up to three days at a time. He would use cannabis to come down from ice, and also would also use Xanax, which he obtained on the street, to help him to sleep.[33] His ice use continued until about January 2018 when he went to gaol.[34]
[31] Transcript of proceedings dated 21 June 2021, 33.
[32] Transcript of proceedings dated 21 June 2021, 34.
[33] Transcript of proceedings dated 21 June 2021, 33.
[34] Exhibit A3, 5; Transcript of proceedings dated 21 June 2021, 35.
The Applicant told the Tribunal that he first started dealing drugs when he was aged around 16 years. He ‘had to’ deal drugs so as to support his habit.[35]
[35] Transcript of proceedings dated 21 June 2021, 34-35.
The Applicant was a heavy drinker between the ages of 18 and 25 years.[36] He then ceased drinking alcohol and claims that he has been primarily sober for about five years.[37]
[36] Transcript of proceedings dated 21 June 2021, 33.
[37] Exhibit A3, 5.
Criminal history in Australia
The Applicant’s criminal history in Australia is set out in his National Criminal History Check dated 15 February 2021.[38]
[38] Exhibit R1, G3, 34-37.
Traffic and drug possession offences – 2008 - 2013
The Applicant's criminal offending began in November 2008, and he appeared before the courts in 2009 for the following traffic offences:
·6 January 2009 - Drive on road while licence suspended - s 10A conviction with no other penalty; 12 months’ disqualification commencing 6 January 2009.[39]
·5 May 2009 - Drive while disqualified from holding a licence - $500 fine; 18 months’ s 9 bond; 2 years’ disqualification commencing 5 January 2010; Driver not wear seatbelt properly adjusted/ fastened - $200 fine.[40]
·10 November 2009 - Drive while disqualified from holding a licence - $800 fine; 12 months imprisonment suspended on entry of s 12 bond; 2 years’ disqualification commencing 4 January 2012.[41]
[39] Exhibit R1, G4, 41.
[40] Exhibit R1, G4, 41.
[41] Exhibit R1, G4, 40.
On 12 September 2009, the Applicant was found in possession of five ecstasy tablets.[42] On 16 February 2010 the Applicant was convicted in the Gosford Local Court of Possess prohibited drug and fined $1000.[43]
[42] Exhibit R2, TB1, 50-51.
[43] Exhibit R1, G3, 36.
On 15 March 2013, the Applicant was found in possession of two ecstasy tablets.[44] On 28 May 2013 the Applicant was convicted in the Woy Woy Local Court of Possess prohibited drug and fined $110.[45]
[44] Exhibit R2, TB1, 47-48.
[45] Exhibit R1, G3, 36.
Threat offences - 9 December 2016 to 22 December 2016
Between 9 December 2016 and 22 December 2016, as part of an unrelated police investigation, the police intercepted the Applicant’s mobile phone service. The NSW Police report records a significant number of conversations and text messages between the Applicant and his former partner, KH.[46]
[46] Exhibit R2, TB1 38-39, TB2 163-167.
On 8 June 2018, the Applicant was convicted in the Gosford Local Court and sentenced as follows:
·Use carriage service to threaten serious harm: 5 months’ imprisonment commencing 26 January 2018.
·Use carriage service to threaten to kill: 7 months’ imprisonment commencing 26 January 2018.
·Use carriage service to menace/harass/offend: 5 months’ imprisonment commencing 26 January 2018.[47]
[47] Exhibit R1, G9, 83 [20] – 84 [33].

Magistrate Williams in his sentencing remarks noted that the threats made by the Applicant against his former partner were ‘significant’ threats.[48] His Honour found that the threats were ‘serious’ and warranted a term of imprisonment:
On any version of the facts those are serious matters which, in my view, would carry a gaol term. They are serious threats and serious use of the carriage services to threaten to kill somebody. Whether he was affected by drugs or not my view is they are matters which would cross the threshold and a gaol term is appropriate.[49]
[48] Exhibit R1, G9, 83.
[49] Exhibit R1, G9, 84.
The Applicant was asked about these offences during cross-examination. He told the Tribunal that at the time of the offending he was interstate in Adelaide ‘partying’, and he ‘got into an argument’ with KH, and ‘said some bad words’ that he should not have said.[50] He agreed he said he promised to ‘slap [her] fucking head’ when he got back home, and acknowledged these were the kind of words that would scare a person. He agreed that he also said to KH that if she went to the police he’d kill her, and that he did ‘not have a problem killing you all’ and that he would shoot her in front of their daughter.[51] He said that he did not mean any of it as he was ‘just angry at the time’ and it came out in the text message. It was not until after that he realised what he had done.[52] At the time of the offence he was on drugs (ice and marijuana) and drinking. He has never owned a gun and has never been in possession of one,[53] nor has he ever assaulted his former partner or anyone.[54]
[50] Transcript of proceedings dated 21 June 2021, 11.
[51] Transcript of proceedings dated 21 June 2021, 15.
[52] Transcript of proceedings dated 21 June 2021, 12.
[53] Transcript of proceedings dated 21 June 2021, 15.
[54] Transcript of proceedings dated 21 June 2021, 12, 16.
During a later telephone call with KH, the Applicant said he was going to ‘kick [her] fucking head in’ and ‘punch [her] instead of slapping [her]’.[55] He told the Tribunal that these were ‘just threats’ and he did not mean any of it. He only said this so she would stop messaging him.[56] He agreed that he had made other threats to harm KH during arguments with her at various points during their ‘very toxic’ relationship.[57]
[55] Transcript of proceedings dated 21 June 2021, 16; Exhibit R2, TB2, 166.
[56] Transcript of proceedings dated 21 June 2021, 16.
[57] Transcript of proceedings dated 21 June 2021, 17.
The Applicant agreed that he should have been convicted for these offences against KH, and that the police should have been involved.[58]
[58] Transcript of proceedings dated 21 June 2021, 19.
Supply cannabis offences - 12 December 2016 and 1 March 2017
A NSW Police report records on 9 December 2016, the Applicant and an associate travelled to Adelaide, returning to Sydney on 11 December 2016 with a suitcase containing 5.216kg of cannabis.[59] On 1 March 2017, during the execution of a search warrant at the Applicant’s residence, police located 5.21kg cannabis, steroids and an amount of cash.[60]
[59] Exhibit R2, TB1 41-42.
[60] Exhibit R2, TB1 41-42.
On 8 June 2018, the Applicant was convicted the Gosford Local Court and sentenced as follows:
·Possess/attempt to, anabolic or androgenic steroidal agent - s 10A conviction with no other penalty
·Possess prohibited drug - 2 months imprisonment commencing 19 February 2018
·Supply cannabis > indictable < commercial quantity – T1 - 15 months imprisonment commencing 19 February 2018 with a non-parole period of 9 months
In relation to the drug related offending committed in late 2016, Magistrate Williams noted there was a ‘real’, ‘sophisticated’ arrangement in transporting the drugs (cannabis) interstate including getting through airport security.[61] The amount supplied was less than the commercial quantity but more than the indictable quantity. The Applicant was involved in the supply of 5.2 kilograms of cannabis, and he was found in possession of $9,950 and other drugs. In His Honour’s view, the supply and dealing with proceeds charges warranted gaol terms.[62]
[61] Exhibit R1, G9, 86.
[62] Exhibit R1, G9, 87.
An appeal was lodged with respect to the severity of the sentence imposed for the supply cannabis offence, and on 7 December 2018, the District Court of New South Wales confirmed the order of imprisonment.[63]
[63] Exhibit R1, G5, 44.
The Applicant was asked about these offences during cross-examination. He told the Tribunal he went to Adelaide with a friend ‘to party’.[64] He returned home and his friend stayed there, and then brought some cannabis back to Sydney and was caught at the train station.[65] The Applicant agreed that he gave his friend money to buy the drugs.[66] He also agreed that the cash and cannabis found in his house during the execution of the search warrant was related to the sale of drugs. He said he was selling drugs to support his own drug habit.[67] The steroids were for his personal use when he was training.[68]
[64] Transcript of proceedings dated 21 June 2021, 20.
[65] Transcript of proceedings dated 21 June 2021, 20-21.
[66] Transcript of proceedings dated 21 June 2021, 21.
[67] Transcript of proceedings dated 21 June 2021, 22.
[68] Transcript of proceedings dated 21 June 2021, 22.
Supply methylamphetamine offences - 26 January 2018
On 26 January 2018, the Applicant was driving at speed in excess of the 50km/h speed limit, when he was noticed by an unmarked police vehicle. When the police activated their warning devices, the Applicant accelerated and drove at high speeds until he was forced to stop at a concrete barricade.[69] The Applicant exited the vehicle and ran away from the police, who pursued the Applicant on foot. He ran into the backyard of a private property and hid until the occupants saw him and ordered him to leave.[70] The foot pursuit continued. When the Applicant fell over, a police officer attempted to arrest him. The Applicant lashed out violently resulting in the police officer losing grip on the Applicant. He continued running away from police and ran into another premises.[71] When the Applicant was ultimately arrested, police located the following in his possession, including in his vehicle:
·cash totalling $6,005
·18.86 grams of methylamphetamine
·0.66 grams of cocaine
·2 mobile phones.[72]
[69] Exhibit R1, G7, 54.
[70] Exhibit R1, G7, 54.
[71] Exhibit R1, G7 54-55.
[72] Exhibit R1, G7 55-56.
On 7 December 2018, the Applicant was convicted and sentenced in the District Court of New South Wales as follows:[73]
·Supply prohibited drug > indictable quantity (not cannabis) - 1 year, 5 months and 11 days imprisonment commencing 7 December 2018, to be served by way of an Intensive Correction Order (ICO)
·Resist officer in the execution of duty - 1 month imprisonment
·Possess prohibited drug: Community Correction Order (CCO) for a period of 12 months commencing 7 December 2018
·The above sentences took into account the following Form 1 offences: 2 counts of Enter inclosed land not presc premises w/o lawful excuse, Not stop vehicle when directed to do so and Deal with property proceeds of crime <$100,000.
[73] Exhibit R1, G3 34-36.
The Applicant told the Court that at the time of this offending he had been awake for two days because he was on cocaine. He said that it was difficult for him to abstain from drugs and that he suffered from depression and anxiety.[74]
[74] Exhibit R1, G7, 60.
The Applicant was asked about these offences during cross-examination. He agreed that the ice he had in his possession was for dealing and for personal use, whereas the cocaine was only for his use. The $6,000 in his possession were the proceeds of the sale of drugs which was to support his habit.[75]
[75] Transcript of proceedings dated 21 June 2021, 23.
Further allegations of offending
On 30 August 2019, the Applicant was arrested and charged with six offences relating to supply and possession of a prohibited drug.[76] On 24 September 2019, the State Parole Authority revoked the ICO, and the Applicant was ordered to serve the remainder of his sentence in prison, being 8 months, 2 weeks and 4 days.[77] On 19 January 2021, two of the six charges laid on 30 August 2019 against the Applicant were withdrawn,[78] and on 4 February 2021 all charges were withdrawn and dismissed .[79] On 26 March 2021, the Local Court of New South Wales confirmed that there are no further outstanding proceedings against the Applicant.[80]
[76] Exhibit R1, G18, 154, G32, 211; Exhibit R2, TB2, 109.
[77] Exhibit R1 G12 101, G16, 137, G18 154, G19 155-156.
[78] Exhibit R1 G32, 211-212.
[79] Exhibit R1 G16 138.
[80] Exhibit R1 G31 210, G32 211-212, G33 213-214.
The Applicant was asked about these charges during cross-examination. He told the Tribunal that the drugs that were found at his mother’s house where he was staying belonged to a friend of his who was staying at the house at the time.[81]
[81] Transcript of proceedings dated 21 June 2021, 38.
Provision of false or misleading information
The Applicant failed to disclose his criminal offending when he entered Australia as evidenced in his Incoming Passenger Cards (IPC) dated 3 May 2009, 11 October 2010, 31 August 2011, 7 September 2012, 31 March 2013, 8 October 2013 and 3 May 2015.[82]The Applicant claims his failure to declare prior criminal convictions on Incoming Passenger Cards comes down to a ‘lack of understanding at the time’, and he now understands the importance of declaring a criminal conviction upon entering the country.[83] He told the Tribunal that he thought that ‘convictions’ referred to terms of imprisonment served in gaol, and this is why he did not state on the IPCs that he had any criminal convictions.[84]
[82] Exhibit R1, G11, 94-100.
[83] Exhibit R1, G16, 141.
[84] Transcript of proceedings dated 21 June 2021, 30-31.
Behaviour in gaol and immigration detention
While he was in gaol, the Applicant worked as a kitchen hand and a sweeper.[85] The Applicant was reported to have behaved well in gaol and was variously described as ‘an excellent worker,[86] ‘fairly quiet and works most of the time’,[87] a willing worker who was ‘polite to staff and follows all directions’,[88] and ‘a good worker who is polite to staff’.[89]
[85] Exhibit R1, G14, 125.
[86] Exhibit R2. TB2, 112.
[87] Exhibit R2. TB2, 114.
[88] Exhibit R2, TB2, 115.
[89] Exhibit R2, TB2, 116.
Based on the Convictions, Sentences and Appeal report dated 15 May 2020, the Applicant incurred institutional penalties on two occasions, for drug possession.[90] The Applicant was questioned about these incidents during cross-examination. In relation to the first incident on 2 October 2018,[91] when he was found in possession of buprenorphine, the Applicant denied it was for his personal use and said that he was ‘holding it for a friend at the time’.[92] He did not say that it belonged to his friend because ‘you can’t say that in jail. It can end up very bad for you.’[93] On 20 December 2018,[94] the Applicant was recorded as telling a staff member that he had last used drugs in custody approximately two weeks ago. The Applicant said that he did not say this.[95] In relation to the second incident on 14 October 2019 the Applicant was found with strips of bupe and brown vegetable matter. He told the Tribunal that he was holding these for a friend, and he was not using drugs at this time.[96]
[90] Exhibit R2, TB2, 64.
[91] Exhibit R2, TB2, 120.
[92] Transcript of proceedings dated 21 June 2021, 35.
[93] Transcript of proceedings dated 21 June 2021, 36.
[94] Exhibit R2, TB2, 83.
[95] Transcript of proceedings dated 21 June 2021, 36.
[96] Transcript of proceedings dated 21 June 2021, 39.
Remorse and responsibility for offending
In his statement dated 31 May 2020, the Applicant wrote:
I am aware that selling prohibited drugs is illegal and I should have asked for help with my addiction so I would not have turned to such crimes to support my habit. I also resisted arrest when I shouldn't of, I was in the wrong and I deserve to be accountable for my actions as well as trespassing when I was trying to flee from the police, my actions were wrong. When I was arrested I pleaded guilty straight away, as I knew I was in the wrong. I can say that if I wasn't addicted to drugs, this would of not happened. I feel ashamed for disappointing my family and friends for so long. The judge mentioned that with the help and support from rehabilitation and family and corrective services I can start over and change my life for the better.[97]
…
I have had ample time to reflect on my life being imprisoned, I want to strive to be the best father figure/role model to my daughter and future children. I do not want my daughter to grow up with a father who is not around like her mother and myself did. During my incarceration I had plenty of time to reflect on my life decisions, how I have greatly let down my loved ones and my community.[98]
[97] Exhibit R1, G17, 150.
[98] Exhibit R1, G17, 151.
In his Personal Circumstances Form dated 31 May 2020, the Applicant wrote that he believes the risk of him reoffending would be ‘extremely’ minimal’ because since quitting his addiction he feels he is ‘in control completely of [his] actions.’ As he gets older, he feels the need to be there for his daughter and family. Since being in prison he has re-evaluated his priorities and needs another opportunity to remain in Australia for the sake of his family.[99]
[99] Exhibit R1, G14, 125.
In his statement dated 31 May 2020, the Applicant wrote that he was determined that with the help from his family and Corrective Services, his life will change for the better. He has goals to expand his brother’s barber business.[100] The Applicant intends to remain drug and crime free and to take all recommended courses provided by community corrections.[101] He also wishes to take part in online courses to improve his self-esteem and to further his education.[102]
[100] Exhibit R1, G17, 151.
[101] Ibid.
[102] Exhibit R1, G17, 152.
Rehabilitation
When sentencing on 7 December 2018, Judge Bright was guarded with respect to the Applicant’s rehabilitation prospects, noting he had ‘long-standing’ and ‘entrenched’ drug and alcohol issues that remain untreated.[103] Her Honour identified positive signs in his future rehabilitation, such as his remorse, and his motivation to address his drug use issues, principally because of his daughter.[104] Her Honour was satisfied that the Applicant has excellent support, particularly from his then partner, and had favourable employment prospects[105]. Nonetheless, her Honour was unable to find that the Applicant is unlikely to re-offend because his drug issues remained untreated.[106]
[103] Exhibit R1, G7 60.
[104] Exhibit R1, G7, 61.
[105] Exhibit R1, G7 60-61.
[106] Exhibit R1, G7 60.
The Applicant completed the Drug & Alcohol Program and passed drug and alcohol tests while on the ICO, which is a ‘testament to how seriously [the Applicant] has approached his addiction’.[107] The Applicant told the Tribunal that when he was out in the community he had to do drug and alcohol tests and he passed every single one. The Applicant said that claims made by his former partner, KH, that he was taking drugs in February 2019 are ‘false allegations’.[108] So too are claims made by KH that in May 2019 he was using ice on weekends, and her claims in June 2019 that he was cheating the urine analysis system through drinking apple cider vinegar before his appointments.[109]
[107] Exhibit R1, G16, 141.
[108] Transcript of proceedings dated 21 June 2021, 37.
[109] Transcript of proceedings dated 21 June 2021, 38.
In March 2019 the Applicant completed the EQUIPS Foundation program at Gosford Correctional Centre.[110] It was recorded that he ‘[p]resented punctual and respectful towards facilitators and other participants. He cooperated with facilitators in all aspects of the program.’[111] Having completed EQUIPS program the Applicant stated that he ‘got to think about his behaviour and how it impacts upon others.’[112]
[110] Exhibit R2, TB2, 147.
[111] Exhibit R2, TB2 92-93, TB2 147.
[112] Exhibit R2, TB2 93.
The Applicant has also completed a course in Stress Management, receiving a final grade of 91 per cent, as evidenced in a Certificate of Completion issued on 24 March 2021.[113] The Applicant told the Tribunal he has completed other courses since he has been in immigration detention.[114]
[113] Exhibit R1, G34, 215.
[114] Transcript of proceedings dated 21 June 2021, 37.
Applicant’s daughter, AC, and former partner, KH
The Applicant has a daughter, AC, who was born in March 2016 and is aged 5 years. She visited him with her mother, KH, when he was in gaol,[115] but has not visited him in immigration detention.[116] He has stayed in contact with his daughter via phone calls and sometimes video calls.[117] The Applicant and KH ‘speak if they have to’ for their daughter.[118] KH has a new partner and has recently had another child.[119] He is comfortable with his daughter being with KH’s new partner.[120] The Applicant has provided financial support for AC, but has been unable to do so since he has been in gaol and immigration detention.[121] KH has said that she will not take AC to New Zealand to visit the Applicant and she does not want AC to leave the country until she is older.[122] He does not know whether KH will help to arrange telephone or video calls with his daughter if he were returned to New Zealand.[123]
[115] Exhibit R1, G16, 142; Transcript of proceedings dated 21 June 2021, 44.
[116] Transcript of proceedings dated 21 June 2021, 44.
[117] Transcript of proceedings dated 21 June 2021, 44.
[118] Transcript of proceedings dated 21 June 2021, 44.
[119] Transcript of proceedings dated 21 June 2021, 44.
[120] Transcript of proceedings dated 21 June 2021, 45.
[121] Transcript of proceedings dated 21 June 2021, 45.
[122] Transcript of proceedings dated 21 June 2021, 46.
[123] Transcript of proceedings dated 21 June 2021, 45.
The Applicant’s mother looks after AC every second weekend, and his brother helps out if she needs anything and visits AC when she goes to his mother’s house.[124]
[124] Transcript of proceedings dated 21 June 2021, 45.
Family in Australia
The Applicant told the Tribunal that has a ‘close’ relationship with his brother and mother and they always been supportive of him.[125] His mother has been his only parent for most of his life because even when his father was out of gaol he was ‘never around’.[126] He stayed in touch with his mother and brother during his time in gaol and in immigration detention.[127] If he were returned to New Zealand it would have a big impact on them both.[128]
[125] Transcript of proceedings dated 21 June 2021, 39-40.
[126] Transcript of proceedings dated 21 June 2021, 40.
[127] Transcript of proceedings dated 21 June 2021, 40.
[128] Transcript of proceedings dated 21 June 2021, 40.
In his Personal Circumstances Form dated 31 May 2020, the Applicant wrote that he has 11 aunties and uncles and 17 cousins in Australia.[129] He told the Tribunal that three of his aunties, one uncle and one cousin in particular would be very upset if he were returned to New Zealand.[130] He said his ‘whole family would be heartbroken.’[131] He does not know whether his relatives would visit him in New Zealand.[132]
[129] Exhibit R1, G14, 124.
[130] Transcript of proceedings dated 21 June 2021, 42-44.
[131] Transcript of proceedings dated 21 June 2021, 43.
[132] Transcript of proceedings dated 21 June 2021, 43.
The Applicant also has nieces and nephews in Australia with whom he shares a ‘close bond’ and who would be ‘extremely upset’ if they were unable to see their uncle.[133] He told the Tribunal that these children are well cared for by their parents, and that they did not visit him while he was in gaol or immigration detention. He has however stayed in contact with them via phone calls.[134]
[133] Exhibit R1, G14, 123.
[134] Transcript of proceedings dated 21 June 2021, 41.
Future plans

In his statement dated 31 May 2020, the Applicant wrote:
If granted the opportunity to stay in Australia I will do my upmost to better myself and to focus on achieving a great work ethic and to provide for my daughter, I will achieve this by working full time for a family business (my brother's business) 3 Kingz Barber Shop in Woy Woy. I have goals to expand the business and open another shop once we save enough money. I am inspired by my brother and his business and am thankful that he is able to help me with work.[135]
[135] Exhibit R1, G17, 151.
The Applicant told the Tribunal that he will be working full-time with his brother if he returns to the community. He also would like to do some further drug and alcohol, stress management and anger management courses and plans to see a counsellor.[136] He wants to do these things so that he makes sure that he does not go down the ‘wrong road’ he went down before.[137] He is no longer in touch with his ‘old friends’ with whom he did drugs in the past.[138]
[136] Transcript of proceedings dated 21 June 2021, 48, 50.
[137] Transcript of proceedings dated 21 June 2021, 50.
[138] Transcript of proceedings dated 21 June 2021, 52.
Impediments on return
In his statement dated 31 May 2020, the Applicant wrote:
I would have little to no support from my family in New Zealand as both of my grandmothers are over 75 and my uncle with physical and mental health issues is in their care full time. My father's cousins I have lost contact with and I am unsure on their location. I fear for my own mental health if I had to go back to a country, which has become unfamiliar to me due to spending most of my life in Australia.[139]
[139] Exhibit R1, G17, 150.
The Applicant told the Tribunal that he does not know what would happen to him if he went back to New Zealand. He does not know if he’d be able to find employment. He has not been back there for seven or eight years.[140] His maternal grandmother lives in New Zealand and she is 80 years old. He has an aunt who he would try to get in touch with if he went back, and three cousins who he does not really know. He does not know his paternal grandmother.[141]
[140] Transcript of proceedings dated 21 June 2021, 48.
[141] Transcript of proceedings dated 21 June 2021, 49.
Psychological assessment
Mr Tim Watson-Munro, consultant psychologist, examined the Applicant on 24 May 2021 and 4 June 2021 and prepared a written report dated 4 June 2021.[142]
[142] Exhibit A3.
In his opinion the Applicant ‘has had a troubled developmental history, characterised by an involvement with the criminal justice system, longstanding symptoms of depression and anxiety, as well as an overarching Substance Use Disorder.’[143] During the period that he was using ice, the Applicant’s ‘judgment and capacity to effectively negotiate his life was significantly impaired’. He noted the comments made by Judge Bright when sentencing the Applicant suggesting some optimism regarding his future, subject to him undertaking treatment and remaining drug free.[144] The Applicant told Mr Watson-Munro he had not taken drugs since entering gaol in January 2018, based on which he opined:
Given the period that he has now been free of substances, he can be considered to be in remission, which accordingly will reduce risk factors in terms of recidivism. He is also keen to undertake treatment and notwithstanding the improvements he has experienced, this is clearly indicated.[145]
[143] Exhibit A3, 10.
[144] Exhibit A3, 10.
[145] Exhibit A3, 12.
Mr Watson-Munro noted there were a ‘number of positive prognostic indicators’ in the Applicant’s circumstances
… including the offer of employment with his brother and associated supervision through living with him, [the Applicant’s] expressions of remorse, which have been also commented upon in the Sentencing Remarks, his strong bond and commitment to his family and in particular his daughter, notwithstanding the breakdown of the relationship with her mother and his strong determination not to use drugs and alcohol in the future.[146]
[146] Exhibit A3, 13.
He concluded that he believed ‘that with these protective factors in conjunction with his motivation for treatment, the risk of reoffending is now trending towards low.’[147]
[147] Exhibit A3, 13.
During cross-examination, Mr Watson-Munro was questioned about his assessment of the Applicant’s risk of re-offending. He agreed that he does not say it is ‘low’ but it is ‘headed in the right direction.’[148] In his view, the factors that currently contribute to this risk being greater than low would be:
A [recurrence] of his drug use; a lack of insight to his behaviour and the dynamics surrounding it; an absence of familial support; a reticence to have treatment, and so on. So if he started using drugs again, family support fell away; if work with his brother fell away; and he didn’t have treatment …[149]
[148] Transcript of proceedings dated 22 June 2021, 76.
[149] Transcript of proceedings dated 22 June 2021, 76.
Mr Watson-Munro confirmed that the Applicant’s substance use disorder ‘is now in remission’, which is ‘two years of clean time’,[150] but he is still ‘severely depressed and anxious’ which is ‘primarily related to the uncertainty regarding his continuing in Australia.’ But there is ‘certainly a longstanding history of depression and anxiety referrable to his formative years.’[151] The Applicant’s depression and anxiety requires ongoing management and he recommends:
Dialectical behaviour therapy, which is … skills-based as well. So although he’s substance-free, he could certainly use support and the acquisition of skills focused on relapse prevention strategies; social skills training; he said that he has no desire to associate with former people in his life; he needs support in motivational psychotherapy. All of these things will contribute to him maintaining a more pro-social law-abiding existence.[152]
[150] Transcript of proceedings dated 22 June 2021, 83.
[151] Transcript of proceedings dated 22 June 2021, 77.
[152] Transcript of proceedings dated 22 June 2021, 77.
Mr Watson-Munro stated that the Applicant had ‘expressed desire to have treatment’, and he would recommend weekly appointments for a minimum of six to 12 months.[153]
[153] Transcript of proceedings dated 22 June 2021, 77.
Mr Watson-Munro was questioned about the potential effect on the Applicant’s daughter of him being removed from Australia. He did not examine AC,[154] however on the basis of the research and the families he has assessed over the last 40 years, he believes that it could lead to her experiencing ‘[i]nsecurity, depression, underachievement at school; and in terms of the longevity of these problems, difficulties in forming stable attachments later in life as well.’[155] In his opinion, if the Applicant and his daughter are able to remain in contact via video ‘it would be better than nothing, but it’s far from ideal.’[156] AC’s relationship with her step-father ‘doesn’t replace the relationship she has with her father, nor indeed the bond she has with [him].’[157]
[154] Transcript of proceedings dated 22 June 2021, 84.
[155] Transcript of proceedings dated 22 June 2021, 81.
[156] Transcript of proceedings dated 22 June 2021, 82.
[157] Transcript of proceedings dated 22 June 2021, 83.
Vicki Corbett - Applicant’s mother
In her statement dated 31 May 2020,[158] the Applicant’s mother outlined the difficult upbringing experienced by her son, primarily as a result of his father being absent from his life. Prior to coming to Australia, she had issues with drugs but she turned her life around and has held the same full-time job for 13 years. She asks that her son be given ‘a last chance’ and emphasises that ‘it is crucial for him to keep his relationship with his daughter.’
[158] Exhibit R1, G22, 163-164.
Mrs Corbett provided a second statement to the Tribunal dated 30 May 2021.[159] She wrote that when she speaks to the Applicant she can ‘hear change in his voice’ and hears someone ‘who is remorseful and wants to make a change in the actions he once led.’ She confirmed that she and her son Kruz will provide the Applicant with support, and ‘will encourage him to live a life his daughter can be proud of.’
[159] Exhibit A2.
In her oral evidence, Mrs Corbett told the Tribunal that she is not fully aware of the extent of the Applicant’s criminal offending, but she did know that he was involved in supplying drugs.[160] She said that her former partner ‘was in and out’ of their lives, and she left him and he now lives in Melbourne.[161] She has a very close relationship with both her sons and effectively raised them herself.[162] She used drugs when she was a teenager but has never been involved in criminal activity.[163]
[160] Transcript of proceedings dated 21 June 2021, 64-65.
[161] Transcript of proceedings dated 21 June 2021, 66.
[162] Transcript of proceedings dated 21 June 2021, 66.
[163] Transcript of proceedings dated 21 June 2021, 67.
She told the Tribunal that if her son is released, he will live with her and she will assist him to get ‘on the right track’. He will be working with Kruz and his time will be taken up with work, his daughter and his family.[164]
[164] Transcript of proceedings dated 21 June 2021, 70.
Mrs Corbett told the Tribunal that she sees her granddaughter AC every second weekend and has her from Friday to Monday.[165] During the week AC goes to kindy and she will start school next year.[166] AC is ‘very close’ to her father.[167] She does not think that KH would travel with AC to New Zealand so she can see her father.[168] Nor would KH allow her or Kruz to take AC to visit him there.[169] She said that if her son is returned to New Zealand she would likely return there too, but she is in a ‘no win’ situation because she has a really good job where she has been for 14 years and has worked her way up to supervisor.[170] They do not have many relatives in New Zealand apart from her mother who is going into a retirement village.[171]
[165] Transcript of proceedings dated 21 June 2021, 67.
[166] Transcript of proceedings dated 21 June 2021, 69.
[167] Transcript of proceedings dated 21 June 2021, 69.
[168] Transcript of proceedings dated 21 June 2021, 67.
[169] Transcript of proceedings dated 21 June 2021, 68.
[170] Transcript of proceedings dated 21 June 2021, 69-70.
[171] Transcript of proceedings dated 21 June 2021, 68.
Kruz Corbett - Applicant’s brother
In his statement dated 31 May 2020,[172] the Applicant’s brother wrote that he is six years younger than the Applicant and they ‘have always shared a very tight bond and relationship’ He strongly believes it was ‘very out of character’ for his brother to have acted the way he has done. His brother ‘strongly regrets his actions and is willing to make a change for his family and for himself’. He can offer the Applicant full-time work in his barber shop and is prepared to teach him barbering skills and provide him with financial support.
[172] Exhibit R1, G21, 162
Mr Corbett provided a second statement to the Tribunal dated 30 May 2021.[173] In this statement he wrote that he has listened to the Applicant express his ‘remorse for the decisions he made in his earlier stages of life’ and his ‘main focus has been breaking bad habits to allow him the chance be in his daughter’s life’. He confirmed that he has a ‘position organised for him to be a paid apprentice at the shop’.
[173] Exhibit A1.
In his oral evidence, Mr Corbett told the Tribunal that he is not fully aware of the extent of the Applicant’s criminal offending, but he knows that he had issues with drugs.[174] During cross-examination he was asked whether he had ever committed a crime or taken drugs and he confirmed he had not.[175]
[174] Transcript of proceedings dated 21 June 2021, 57-58.
[175] Transcript of proceedings dated 21 June 2021, 59.
He told the Tribunal that he stays in touch with the Applicant via phone and he sees the Applicant’s daughter AC as much as he can, which is most weekends and sometimes during the week.[176] When he sees AC ‘she talks all the time about her father.’[177] She has been told that her father is ‘on holidays’ as she is too young to understand where he is.[178]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[176] Transcript of proceedings dated 21 June 2021, 60-61.
[177] Transcript of proceedings dated 21 June 2021, 61.
[178] Transcript of proceedings dated 21 June 2021, 62.
1)Does the Applicant pass the ‘character test’?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check report dated 16 February 2021 regarding his criminal convictions and sentences. This report records that on 7 December 2018 the Applicant was convicted in the District Court of New South Wales of Supply prohibited drug> indict quantity (not cannabis) SI and sentenced to imprisonment of one year, five months and 11 days to be served by the way of an Intensive Correction Order (ICO). On 24 September 2019, the ICO was revoked by the State Parole Authority and the Applicant was ordered to serve imprisonment of eight months, two weeks and four days in gaol. The Tribunal is satisfied that the Applicant has a ‘substantial criminal record’ for the purposes of section 501(3A)(a) and section 501(6) of the Act as he has been sentenced to a term of imprisonment of 12 months or more: section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that on 15 May 2020, the Applicant was serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the state of New South Wales.
Having found that the Applicant does not satisfy the character test, the Tribunal finds that section 501CA(4)(b)(i) cannot be invoked to revoke the Mandatory Visa Cancellation Decision.
2)Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether pursuant to section 501CA(4)(b)(ii) of the Act there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must, in accordance with paragraphs 8 and 9 of the Direction, take into account the relevant ‘primary considerations’ and ‘other considerations’.
PRIMARY CONSIDERATIONS
Primary Consideration 1 – Protection of the Australian community
Reiterating the general guidance and principles in the Direction, paragraph 5.2 states that:
a)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia; and
b)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.1(2) states that in considering the need for protection of the Australian community, decision-makers should also have regard 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 8.1.1(1) sets out factors to be considered in determining the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. Relevant to the Applicant’s conduct, the Tribunal must have regard to the following factors:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)…
(ii)…
(iii)…
(iv)…
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false of misleading information to the Department, including by not disclosing prior criminal offending;
...
Having regard to the factors in paragraph 8.1.1(1) of the Direction, the Tribunal finds, for the following reasons, that the Applicant’s offending is serious. The Applicant has committed serious offences including the supply of prohibited drugs, (‘supply offences’), resisting police, and using a carriage service to make serious threats of violence against his former partner (‘threat offences’). The Applicant has been sentenced to custodial sentences on multiple occasions, demonstrating the seriousness of his offending.
Having regard to the factors in paragraphs 8.1.1(a)(i), (ii) and (iii) the Tribunal finds that the threat offences for which the Applicant was convicted in June 2018 are very serious. The threats made by the Applicant against his then partner involved threats to cause her serious physical harm or death, including by shooting her. These threats would have caused her to fear for her life and for the safety of their young child who was then aged nine months. The Tribunal accepts that the Applicant did not take any tangible steps towards carrying out these threats, for example by acquiring a firearm, and that he never intended to cause her physical harm or injury. However, as Magistrate Williams found, the threat offences were serious and warranted a gaol term, notwithstanding that the Applicant was under the influence of drugs at the time of the offending.
The Tribunal finds that the supply offences for which the Applicant was convicted in June and December 2018 are serious, as the supply of prohibited drugs can inflict serious harm on individuals and the community. As Judge Bright remarked in sentencing the Applicant in June 2018:
The crime of supplying prohibited drugs is regard[ed] by the courts as serious because they destroy the lives of individuals; they disrupt families and generate a significant cost to the community both socially and financially.[179]
[179] Exhibit R1, G7 56.
The supply cannabis offence for which the Applicant was convicted in June 2018 involved over five kilograms of cannabis. Magistrate Williams noted that this amount is less than the commercial quantity of 25 kilograms, but much more than the indictable quantity of one kilogram. In sentencing the Applicant, Magistrate Williams accepted that the Applicant was motivated to supply the cannabis to obtain funds to support his own drug habit. His Honour also commented on the ‘varying attitudes towards cannabis as opposed to amphetamines, cocaine and other drugs’[180], but stated that for sentencing purposes the authorities make it clear that, with the supply of drugs, the type of drug does not matter and ‘it is the involvement in supply that is the issue before the Court’.[181] The 15 month sentence imposed on the Applicant for this offence, although reasonably substantial, was well below the 10 years’ maximum available on such a charge. His Honour was satisfied that the large amount of cannabis, along with the possession of funds deemed to be the proceeds of crime, made it inevitable that a gaol term would be imposed on the Applicant, even though this was his first major offence[182]. His Honour also emphasised the need for deterrence in such a case.[183]
[180] Exhibit R1, G9, 85.
[181] Ibid.
[182] Exhibit R1, G9 85 [40]-[45].
[183]Exhibit R1, G9 86 [48] - 87 [1].

The supply methylamphetamine offences for which the Applicant was convicted in December 2018 involved an amount of 18.86 grams. Judge Bright pointed out the need for deterrence with supply drug offences, however she took into account the low quantity of the drug involved in this offending. Her Honour also accepted the Applicant’s evidence that he was selling the drugs on behalf of another person and keeping a portion for his own use, and she was therefore satisfied that his role in the offending could be ‘characterised as a user/dealer.’[184] Her Honour considered that the objective seriousness of the Applicant’s offending was below the middle of the range of offending and towards the lower end of the scale.[185] This was reflected in the non-custodial penalty for this offence, and the length of the sentence being well below the maximum available penalty of 15 years’ imprisonment.
[184] Exhibit R1, G7, 56.
[185] Exhibit R1, G7, 56.
Having regard to paragraph 8.1.1(c) of the Direction, the custodial sentences imposed on the Applicant by the courts for his offending are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Jal v Minister for Immigration and Border Protection [2016] AATA 789 at [24]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. As noted above, the sentences imposed on the Applicant for his criminal offending were at the lower end of the scale and included non-custodial penalties.
In relation to the factors in paragraph 8.1.1(1)(d) and (e), the Applicant’s offending was not infrequent over a period of decade from 2008 to 2018, and although not significantly increasing in seriousness, its cumulative effect discloses his general disregard for the law.
The Tribunal has had regard to paragraph 8.1.1(1)(f) of the Direction and notes that the Applicant provided false or misleading information when he failed to disclose his prior criminal offending on incoming passenger cards on seven occasions. The Applicant accepts, and the Tribunal finds, that this is ‘serious behaviour’.[186] The Tribunal finds that this behaviour is serious for reason that, in order to ensure his smooth entry back into Australia, the Applicant concealed his criminal offending from the immigration authorities.
[186] Applicant’s Statement of Facts, Issues, and Contentions dated 8 June 2021, 21.
On the basis of the evidence before it, and for the stated reasons, the Tribunal finds that the Applicant’s criminal offending is serious in nature, and this weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction states
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harms increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction provides that in assessing the risk that may be posed 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:
i.the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to reoffend in accordance with paragraph 8.1.2(2)(a) of the Direction, the Tribunal finds that any future reoffending by the Applicant may involve psychological if not physical harm to his victims. The Applicant’s criminal offending has included the serious threat offences against his former partner. The Tribunal has previously recognised the physical and psychological harm that is caused by violent behaviour in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (‘XFKR’), the Tribunal observed at [45]:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
The Applicant contends,[187] and the Tribunal accepts, that none of his criminal offending has involved any actual violence towards other people. However, as noted above, the psychological impact of domestic violence offending is often ongoing and deeply damaging to its victims. If the Applicant were to commit further drug supply offences, the potential harm to individuals and the community would be serious for reason that, as Judge Bright stated, drugs ‘destroy the lives of individuals; they disrupt families and generate a significant cost to the community both socially and financially.’ In addition to the potential harm to the Applicant’s victims, there is the significant financial cost to the community associated with emergency services and law enforcement activities of any future offending by the Applicant.
[187] Applicant’s Statement of Facts, Issues, and Contentions dated 8 June 2021, 22.
On the basis of the evidence before it, the Tribunal finds that the nature of the harm to individuals should the Applicant engage in similar criminal offences is serious.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct in accordance with paragraph 8.1.2(2)(b) of the Direction, the Tribunal notes that the Applicant has expressed his remorse for the offences he has committed. The Applicant claims to understand the seriousness of his offences and says he regrets his actions and their impact of his victims.
The Applicant contends that the likelihood of him committing drug supply offences in the future is ‘extremely minimal’ because his motivation for committing the supply offences was fund his own drug habit and he is no longer using drugs. The Applicant’s evidence is that he has not consumed drugs since entering gaol in January 2018. According to Mr Watson-Munro, if the Applicant indeed has not taken drugs for a period of what is now more than three and a half years, he is in remission of the substance use disorder he previously suffered.
The Applicant completed a Drug and Alcohol Program and successfully passed all drug and alcohol tests and reported as required to NSW Community Corrections while in the community pursuant to the ICO during the nine month period from 7 December 2018 to 30 August 2019. This evidence supports a finding that the Applicant had ceased drug use and is not consistent with the claims made by KH in February 2019 and May 2019 that the Applicant was taking drugs at this time. The Tribunal finds that KH’s claim in June 2019 that the Applicant was cheating the urine analysis system through drinking apple cider vinegar before his appointments lacks plausibility.
While in gaol, the Applicant incurred institutional penalties for drug possession in October 2018 and October 2019. His evidence in relation to these penalties is that the drugs found in his possession belonged to fellow prisoners and he was holding them on their behalf. It was not suggested to the Applicant in cross examination that the drugs were for his personal use. The Tribunal accepts that the drugs found in the Applicant’s possession were not for his use, and that he told the staff the drugs were his due to the peer dynamics between prisoners in a gaol environment.
The Tribunal has placed no weight on the allegations that led to the Applicant’s arrest on charges of supply and possess cannabis in August 2019 when he was staying at his mother’s house. It has done so for reason that the charges were not pursued against him.
On the basis of the evidence before it and for the reasons stated above, the Tribunal is satisfied that the evidence supports a finding that the Applicant has been abstinent from drugs since entering gaol in January 2018.
The Tribunal has placed considerable weight on the assessment of Mr Watson-Munro of the Applicant’s risk of re-offending. In his opinion, the fact the Applicant is in remission from his substance use disorder ‘will reduce risk factors in terms of recidivism.’ In his opinion, there are a ‘number of positive prognostic indicators’ in the Applicant’s circumstances which include his family support, the offer of paid employment with his brother, and his desire to be reunited with his daughter. In addition, he has expressed his desire to continue treatment and counselling notwithstanding the considerable progress he has made to date in battling his addictions. Mr Watson-Munro’s view is ‘that with these protective factors in conjunction with his motivation for treatment, the risk of [the Applicant] reoffending is now trending towards low.’
On the basis of the evidence before it and taking into account available information and evidence on the risk of the Applicant re-offending and his rehabilitation, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is at the lower end of the scale. In the context of the potential harm to the Applicant’s victims should he engage in the same or similar criminal conduct in the future, specifically family violence offending, the Tribunal finds that this risk is not insignificant, and is unacceptable.
For the reasons above and applying the guidance in paragraphs 8.1.1 and 8.1.2 of the Direction, Primary Consideration 1 weighs on balance against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 – Family violence committed by the non-citizen
This Primary Consideration is relevant in the Applicant’s circumstances as the threat offences he committed against his former partner constitute family violence. Magistrate Williams described the content of the text messages sent by the Applicant to his then partner as ‘significant’ and ‘serious threats’.
Family violence is defined in the Direction in paragraph 4(1) as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c)   stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f)    intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)    preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)    unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
In considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction states that decision-makers must consider the following factors:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effective of repeated acts of family violence;
(c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct;
(d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement of other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
Having regard to the frequency of the Applicant’s family violence offending and its cumulative effect in accordance with paragraph 8.2(3)(a) and (b) of the Direction, the Tribunal notes that the threat offences are the only family violence offences for which the Applicant has been convicted. The Tribunal also notes that the threat offences occurred more than four and a half years ago and occurred when the Applicant was affected by drugs. However, there is evidence before the Tribunal that on 5 September 2019 an Apprehended Domestic Violence Order was made against the Applicant for the protection of KH which indicates that KH feared for her safety at this time.[188] The Applicant’s evidence also is that he had made other threats to harm KH during arguments with her at various points during their ‘very toxic’ relationship.[189]
[188] Exhibit R2, TB2, 121.
[189] Transcript of proceedings dated 21 June 2021, 17.
In relation to the factors in paragraph 8.2(3)(c) of the Direction, the Applicant’s evidence to the Tribunal is that he appreciates the severity of domestic violence offending and accepts that his behaviour towards his former partner warranted the intervention of the police and the convictions he received. He has recently completed a Stress Management course indicating his commitment to addressing his ability to manage his anger and emotions.
On the basis of the evidence before it and applying the guidance in paragraph 8.2 of the Direction, the Tribunal finds that whereas the Applicant’s family violence conduct has not been frequent or repetitive and he accepts responsibility for his offending, the conduct involved serious and significant threats, including to kill his former partner. Accordingly, Primary Consideration 2 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 – The best interests of minor children in Australia affected by the decision
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made: paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).
In considering the best interests of the child, paragraph 8.3(4) relevantly requires the following factors be considered:
(a) The nature and the 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 the 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 child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;
(h) …
The Applicant has one child, a daughter, AC, aged five years, whom he claims will be adversely affected if he is removed from Australia.
Having regard to the factors in paragraph 8.3(4)(a), the evidence before the Tribunal is that the Applicant shares ‘a very special bond’ with his daughter and her ‘eyes light up’ when she sees him.[190] The Applicant lived with his daughter and her mother, KH, from the time of her birth in March 2016, other than during the period in 2018 when he was incarcerated, and until he was returned to gaol in September 2019 following the revocation of the ICO. The Applicant was therefore physically present in his daughter’s life during her early years. His daughter only saw him a ‘handful’ of times whilst he was in prison as he and her mother thought it best that she not be exposed to that environment.[191] He would however communicate with her by phone a few times a week whenever his mother was babysitting her. The Applicant remains in contact with his daughter, speaking to her on the phone and by video calls. The Applicant claims that his daughter will be ‘extremely heartbroken’ to grow up without her father, and due to her young age ‘she will not understand why her Dad has left her.’ He does not wish for her to ‘suffer heart ache or confusion’.[192]
[190] Exhibit R1, G14, 121.
[191] Ibid.
[192] Ibid.
In relation to the factors in paragraph 8.3(4)(b) and (c) the evidence is that the Applicant and his daughter have a very close relationship and there is potential for him to play a positive role in her life at least until she reaches adulthood. However, the Applicant will be unable to reside with his daughter, as her mother and the Applicant are no longer in a relationship and she is now with another partner. Therefore, AC will only see her father if and when access visits are arranged with him, although the evidence is that KH would facilitate these visits. Relevant to paragraph 8.3(4)(g) is the evidence that the Applicant’s family violence offences against KH occurred at a time when AC was in the home, however AC was aged only nine months at the time, and would be unlikely to have been adversely affected by this family violence.

Having regard to the factors in paragraph 8.3(4)(d), (e) and (f), the Applicant’s ongoing physical separation from his daughter will have an impact on her as the evidence is that she loves and misses her father and is thrilled whenever she sees him. She has however for the past three years been in the primary care of her mother who is assisted by AC’s grandmother who has her every second weekend.[193] The impact on AC of her separation from her father could be mitigated by regular phone and video calls, which is how they have stayed in contact during his incarceration in gaol and immigration detention. The Applicant’s mother’s evidence is that it is highly unlikely that KH would permit AC to travel alone or with her or the Applicant’s brother to New Zealand to visit the Applicant.
[193] Transcript of proceedings dated 21 June 2021, 38.
The Applicant also has nieces and nephews who are minor children in Australia who would be upset if he were to be removed from Australia. However, as these relationships are non-parental and the evidence is that these children have parents who are able to and do care for them, the Tribunal has given less weight to the impact on them of the Applicant being returned to New Zealand, particularly in circumstances where they will be able to remain in contact with him via phone and video calls.
Applying the guidance in paragraph 8.3(4) of the Direction, the Tribunal finds that this primary consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision as it is in the best interests of the daughter, and his nieces and nephews, for the Applicant to have his visa reinstated and be permitted to remain in Australia.
Primary Consideration 4 – The expectations of the Australian community
Paragraph 8.4 of the Direction states:
1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)…;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature …;
(d)…
(e)…
(f)…
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 8.4 of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[194] 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.[195]
However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[196] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[197]
[194] Charlesworth J at [66]; Stewart J at [91].
[195] Charlesworth J at [67]; Stewart J at [104].
[196] Charlesworth J at [76].
[197] Stewart J at [97].
The effect of paragraph 8.4 is that it imputes to the Australian community the expectation that non-citizens who have permission to remain in Australia will obey Australian laws. The question to be addressed does not involve an inquiry into what the Australian community does or does not expect, because that is normatively expressed in the terms of the consideration: paragraph 8.4(4). Rather, the relevant inquiry is ‘whether it is appropriate to give more or less weight to a deemed community expectation’ of non-revocation of a mandatory visa cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[198] As a normative expression, this consideration indicates the likelihood that community expectation will in most cases lead to non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
[198] Charlesworth J at [77]
The inclusion of family violence in paragraph 8.4(2)(a) and violent crimes against women as offences for which the Australian community expects that the Australian Government can and should cancel the visa of a non-citizen ‘regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community (paragraph 8.4(3)) means that this factor necessarily weighs against the Applicant. In addition, the Applicant’s supply offences are likely to have caused damage to individuals, families and the community, and the Australian community would have a low degree of tolerance for this criminal behaviour, and the expectation would be that the Applicant’s visa remain cancelled.
However there are factors which moderate to some degree the weight of this consideration in favour of non-revocation of the Mandatory Visa Cancellation Decision. The Applicant arrived in Australia at the age of 12 years and is now aged 30 years. Having regard to the factors in paragraph 5.2(4) of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour as he has lived in Australia for more than half his life. The Tribunal finds that the length of time the Applicant has been living in Australia is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account the nature, seriousness and impact of the Applicant's criminal offending, and the duration of his residency in Australia, the Tribunal finds that Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the primary considerations carry particular weight, the Direction acknowledges at paragraph 9 that ‘other considerations’ must be taken into account by the decision-maker where relevant. Paragraph 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations.’
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
The ‘other’ considerations relevant to the Applicant’s circumstances are considered in the following paragraphs.
Extent of impediments if removed from Australia
The Direction states in paragraph 9.2:
(1)Decision-makers must consider 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.
Having regard to the factors in paragraph 9.2(1)(a), the evidence before the Tribunal is that the Applicant is 30 years of age and is generally in good physical health. He suffers from anxiety and depression, and Mr Watson-Munro diagnosed Depressive Disorder (severe and recurring) and Anxiety Disorder according to DSM-5 criteria.[199] His substance use disorder is now in remission. If the Applicant were to require mental health treatment or substance abuse counselling in the future, he would be able to readily acquire it as a New Zealand citizen.
[199] Exhibit A3, 7.
Guided by paragraph 9.2(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on his return, as he lived in New Zealand until the age of 12 years and has some familiarity with life in his home country. It will however take time for him to readjust to life in a country in which he has not lived since he was a boy. The Applicant’s evidence is that he has some family members in New Zealand, including his maternal grandmother, an aunt who he would try to get in touch with, and three cousins who he does not really know. The Applicant’s mother’s evidence is that she would be willing to relocate to New Zealand to support her son, however she will experience hardship if she were to do so as she would give up long-term stable employment and be separated from her other son and granddaughter.
Having regard to paragraph 9.2(1)(c), the Tribunal finds that the Applicant will have the same access to government services as all New Zealand citizens including health care, welfare benefits and social services. The economic and employment opportunities in New Zealand are similar to those in Australia. The Applicant has worked as a labourer and barber’s assistant in Australia and would likely find similar employment in New Zealand.
Having regard to the evidence before it, the Tribunal finds the Applicant will face considerable hardship if he is required to establish himself in New Zealand, having not lived there since he was a boy. He has no friends and only a few family members in New Zealand and he will struggle to find stable accommodation and employment and re-establish his life. This hardship will be exacerbated by the emotional distress he will suffer due to his separation from his brother and daughter who will remain in Australia, and also his mother if she decides not to relocate with him to New Zealand. Accordingly, guided by the factors in paragraph 9.2 of the Direction, the Tribunal finds that this consideration weighs strongly in favour of the revocation of the Mandatory Visa Cancellation Decision.
Impact on victims
The Direction states in paragraph 9.3:
1)Decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness
The impact on victims of a decision to revoke the cancellation of a visa requires the decision-maker to direct attention to the impact on the victim of the Applicant being allowed to remain in Australia. Generally, this consideration will weigh against the Applicant due to the harm caused by them to the victims of their offending.
In CGX20 Minister for Immigration [2021] FCAFC 69 at [9], Rares, O’Callaghan and Jackson JJ observed that the trial judge had noted
that there are many instances in which a victim of violence, including family violence, may have a relationship with the non-citizen whose visa has been, or is at risk of being cancelled, and wishes the person to remain in Australia so as to maintain a relationship. His Honour did not agree with the Tribunal’s suggestion that not revoking the decision to cancel a non-citizen’s visa would always have a positive impact on victims, because sometimes it may have an adverse impact on a victim and cited, as an example, Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531 at 539 [32] per Rangiah J.
The Tribunal accepts that there may be circumstances in which the non-revocation of a visa cancellation decision will have an adverse impact on a victim, including in circumstances where the victim and the Applicant are the parents of a child or children.
In the Applicant’s circumstances, the Applicant’s former partner and victim of his family violence offending has expressed her desire for him to remain in Australia. In a letter of support dated 1 June 2020, she wrote
I am writing this letter in hope that [the Applicant] is able to stay in Australia to help raise our daughter. I believe growing that up without a father will change the way [AC] is as a person and I don't want her going through the hurt of not having her father around for her upbringing.
…
To have [the Applicant] living in another Country would leave me to raising [AC] on my own. Being a solo parent is stressful and puts a lot of pressure on myself financially and emotionally.[200]
[200] Exhibit R1, G26, 168.
KH provided this letter in support of the Applicant but was not called to give evidence or made available for cross-examination at the hearing. It is unclear whether she remains of the view expressed in her letter, or whether it has been moderated in any way in the twelve months since she wrote the letter. Accordingly, the Tribunal has placed limited weight on this evidence.
There is no evidence before the Tribunal of the views of the other victims of the Applicant’s criminal offending.
On the basis of the evidence before it, the Tribunal finds that this consideration is of neutral impact in assessing the impact on the Applicant’s victims of a decision to revoke the Mandatory Visa Cancellation Decision.
Links to the Australian community
Paragraph 9.4 of the Direction requires decision-makers to have regard to paragraphs 9.4.1 to 9.4.2 below.
Strength, nature and duration of ties to Australia
Paragraph 9.4.1 requires consideration of the strength, nature and duration of the Applicant’s family and social ties to Australia:
1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2)Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen 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 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.
Having regard to paragraph 9.4.1(2)(a) of the Direction, the evidence before the Tribunal is that the Applicant has resided in Australia since 2002, having arrived in Australia at the age of 12 years. The Applicant completed his schooling in Australia and engaged in periods of employment as a labourer and in his brother’s barber shop. The Applicant commenced offending in 2008 when he was an adult aged 18 years. The Tribunal finds that the Applicant has spent nearly two decades of his life in Australia and has made a contribution to the Australian community through his work. However, the Applicant has also spent time in criminal custody, and has been the subject of the time and resources of police and the courts at the expense of the Australian community.
In relation to the factors in paragraph 9.4.1(1) and 9.4.1(2)(b) of the Direction, the Applicant has strong family ties in Australia, specifically his mother, brother, daughter and his nieces and nephews. The evidence is that these family members would suffer considerable emotional distress if he were returned to New Zealand.
On the basis of the evidence before it, the Tribunal is satisfied that Applicant’s family members, who are Australian citizens or have a permanent right to remain in Australia, would be significantly adversely impacted if the Applicant’s visa is not reinstated.
Impact on Australian business interests
The Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand. Accordingly, the Tribunal has given the factors in paragraph 9.4.2(3) no weight.
On the basis of the evidence before it, and having regard to the factors in paragraph 9.4, particularly the length of time the Applicant has resided in Australia, his contributions to the community, as well as the strength and nature of the Applicant’s family ties in Australia, the Tribunal finds that this consideration weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Considerations 1 and 2 weigh against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s criminal offending is very serious, particularly as it has involved family violence offences and supply of drug offences. Despite the low risk of him committing future criminal offences, the nature and seriousness of the harm his re-offending would cause to his future victims is such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.

Primary Consideration 3 weighs strongly in favour of revocation of the Mandatory Visa Cancellation Decision. It is undoubtedly in the best interests of the Applicant’s daughter for him to remain in Australia. Primary Consideration 4 on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia, and this is not outweighed by his two decades of residence in Australia.
In regard to the relevant Other Considerations, the impediments the Applicant will face on return to New Zealand and his strong links to the Australian community weigh heavily in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The Reviewable Decision dated 12 April 2021 to refuse to revoke the Mandatory Visa Cancellation Decision dated 15 May 2020 is set aside and in substitution the cancellation of the Applicant’s Special Category (Class TY) (subclass 444) visa is revoked.

I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk

...........................[SGD].............................................
Associate
Dated: 26 July 2021

Date(s) of hearing: 21 & 22 June 2021

Counsel for the Applicant: Mr N Poynder

Advocate for the Applicant: Mr G Lewis, Lewis & Bollard

Solicitors for the Respondent: Mr K Sypott, Australian Government Solicitors

[2021] AATA 2501

5 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Remedies

Date(s) of hearing:	21 & 22 June 2021
Counsel for the Applicant:	Mr N Poynder
Advocate for the Applicant:	Mr G Lewis, Lewis & Bollard
Solicitors for the Respondent:	Mr K Sypott, Australian Government Solicitors