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

[2020] AATA 3386

Dean and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3386 (10 August 2020)

Division:GENERAL DIVISION

File Number(s):      2020/3200

Re:Tinirau Dean

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:10.08.2020

Date of written reasons:        4.09.2020

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa be revoked.

............[sgnd]............................................................

Senior Member Dr N A Manetta

Catchwords

Mandatory cancellation of visa under s 501 of Migration Act 1958– Other considerations outweigh primary considerations - Decision under review set aside and decision substituted that visa cancellation be revoked

Legislation

Migration Act 1958 (Cth)

Cases

FYBR v. Minister for Home Affairs [2019] FCAFC 185

LJTZ v. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356

Secondary Materials

Direction No 79- Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (issued under s 499 of Migration Act, 1958)

REASONS FOR DECISION

Senior Member Dr N A Manetta

4 September 2020

1. After I delivered my decision, I received a request for written reasons, which I now publish.

2. This is an application by Mr Tinirau Dean seeking a review of the decision of the respondent’s delegate dated 18 May 2020. In this decision, the delegate declined to revoke the cancellation of Mr Dean’s visa. The visa had been cancelled mandatorily under section 501 of the Migration Act, 1958 (the Act).

3. The mandatory cancellation of the visa had occurred because Mr Dean was serving, on a full-time basis, part of a lengthy term of imprisonment he had received for certain offences. Section 501 obliged the respondent to cancel Mr Dean’s visa in these circumstances. As I have said, the respondent’s delegate declined to revoke the cancellation.

   TRIBUNAL’S TASK AND STATEMENT OF CONCLUSION

4. Hearing the matter afresh on the evidence before me, I must decide whether the cancellation of Mr Dean’s visa should be upheld or revoked.  I must conduct a de novo hearing on the merits.  That is, I may set aside the decision under review and reinstate Mr Dean’s visa even though I find no error in the delegate’s decision; equally, if I decide that it is appropriate for Mr Dean’s visa to be cancelled, I may do so notwithstanding any error in the delegate’s reasons. 

5. At the hearing before me, Mr Dean represented himself but was assisted by Ms Subramaniam, a director of the nursing home facility in which Mr Dean has resided since October last year; Mr Brinley appeared for the respondent.  I am grateful for Ms Subramaniam’s help in the smooth conduct of the hearing.  I shall express my reasons as plainly as possible.

6. I have decided to set aside the decision under review and to revoke the visa cancellation.  Mr Dean’s visa will be reinstated.  I now explain my reasons.  Before doing so, I set out certain background facts.

   BACKGROUND FACTS

7. Mr Dean was clearly unwell when he gave his evidence to the Tribunal. He presented as an earnest but often confused man.  His thinking was frequently disordered.  Clearly, he has serious health concerns, caused principally, I believe, by his poorly managed diabetes, his past life on the streets, and probably also by his past misuse of illicit drugs (in particular, methylamphetamine or “ice”).

8. Mr Dean was born in the Cook Islands in 1985. Some court records before me indicate that he was born in 1975, but other records suggest 1985.  Mr Dean indicated clearly, and I believe honestly, in his evidence that he was born in 1985.  I accept this evidence.  At the time of the hearing before me, he was, therefore, 35 years of age. 

9. When Mr Dean was a child, his mother and father separated. He was entrusted to his paternal grandparents. He saw his mother from time to time, but he has only seen his father three times in his life, he said. He has a number of stepbrothers and sisters. On the Cook Islands, there was an extended family of aunts and uncles, but his immediate family environment comprised his grandfather and grandmother only.

10. Mr Dean attended school in the Cook Islands. After completing an elementary education, Mr Dean worked as a carpenter.  He was also involved in the arduous work of looking after the plantations that belonged to the family. He said he enjoyed this work.

11. Unfortunately, his grandfather died when he was just eight years of age. He and his grandmother then lived alone together. She looked after him until 2005, he said, when he was about 20 years of age.

12. Two weeks before Christmas 2005, Mr Dean’s grandmother died from heart failure.  Mr Dean said that all he had known in his life was his grandparents after his parents’ separation.  He said he was very upset− indeed, heartbroken− over his grandmother’s death.  I accept that evidence.  At about that time, he also discovered he had Type 1 diabetes. He had lost a lot of weight, he said, and a doctor diagnosed diabetes.

13. At some later point, Mr Dean left the island where he had been raised and moved to Auckland, New Zealand, a major city. He stayed with aunts and uncles there and began work as a carpenter.  He said that his diabetes took over his life substantially in 2009, and he left work and began to receive social security benefits.  He had lost all his strength, he said. His evidence was that his diabetes, despite medication, left him with little strength, and he was subject to seizures. He accepted before me that his diabetes was poorly managed.

14. He also said that he began to commit crimes at about this time (viz, in 2009), mainly involving theft.  His official criminal record from New Zealand indicates, however, that he began offending from January 2007 onwards.  

15. Mr Dean indicated in his evidence that he was “always at the wrong place at the wrong time with the wrong people.” Had Mr Dean been more lucid and less confused when he gave evidence, this answer might have indicated a wilful discounting of personal responsibility for the crimes he has committed.  I think this answer is properly viewed, however, as an indication that Mr Dean has very diminished personal insight, that he requires close personal supervision, and that he is susceptible to bad external influences (as he acknowledged).

16. Mr Dean’s evidence to me was that he was not jailed in New Zealand, which is borne out by his official criminal record; but the record does indicate that he was repeatedly convicted of stealing. It also indicates that the offending began well before 2009, as I have said.

17. Mr Dean knew that his mother was in Queensland, but he had little contact with her; and, as I have said, he has seen his father only three times in his life.  Mr Dean gave evidence that in 2015, when he was aged 30, his mother came looking for him in New Zealand. He had been admitted to hospital, he said, and his predicament had been communicated to her in some way. He was very happy to see her and she was happy to see him. It was a surprise for him and, indeed, shocked him, he said.

18. When they met, she asked if she could bring him to Australia, and he agreed. Mr Dean joined his mother at her home in Mareeba, Queensland. There he met her new husband and children.  He believed he got on well with the family.  He said he began to understand more about his diabetes. He was required to attend the Cairns Base Hospital for treatment.  It took two hours by car to reach the Hospital, he said.

19. For reasons that are still not completely clear to me given his evidence that he was generally happy, Mr Dean left his mother’s home in Mareeba. He wanted, he said, to “solve the problem” of his diabetes. He said that his seizures were a burden to the family as was the round-trip to and from the Cairns Base Hospital.  Mr Dean said he took a decision to live closer to the Hospital, and so he left home for Cairns; but he soon began to live on the streets there.  He did not return to Mareeba.  It was at this point, he said, that he began to take drugs. He said to me, rather naively, that he met some good people on the streets, but also some very bad people. He began to live day by day.  He used cannabis and also took “ice”. He said that he took ice to improve his energy levels as he found he had difficulties with daily tasks, but he added that he feared the drug and seldom took it.

20. Overall, I accept Mr Dean’s evidence about his background in the Cook Islands and, in particular, about his separation from his parents and the loss of his grandparents.  I accept also his intermittent homelessness in Cairns as it appears from records in evidence before me[1] that he had no fixed address when he committed some of the offences with which he was eventually charged.

    [1] See for example Ex R2, at pp, 40, 44.

21. I do not accept, however, that Mr Dean’s criminal behaviour in Auckland was necessarily connected with his having had to give up work in 2009 because of the effects of his debilitating diabetes.  Rather, I think he continues to lack insight into the choices he made  in New Zealand.  There were three burglary offences committed over a two-week period in late January and early February 2007, for example.  In addition, I do not accept Mr Dean’s evidence that his abuse of the drug ice was limited.  He has been found in possession of ice or drug-taking implements on many occasions,[2] and, as is well known, ice is a highly addictive substance.

    [2] See Exhibit R2 generally.

    CRIMINAL OFFENDING IN AUSTRALIA

22. I now turn to describe Mr Dean’s criminal offending In Australia after his arrival on 6 September 2015. His criminal record is reproduced in the section 501G documents.[3]

    [3] Exhibit R1 at pp 20ff.

23. The first offence involved two counts of stealing in June 2016. Mr Dean was convicted of this offence and was required to perform community service. A series of offences was then committed by Mr Dean in 2017.  They involved stealing on 13 July 2017, and stealing accompanied by an assault on an elderly person on 19 July 2017.  There was a breach of bail conditions on 20 September 2017 and a breach of his community service order as a result of the two stealing offences.

24. This series of offences is very serious.  One of the thefts involved an older person’s handbag.  It was accompanied by a serious assault upon her.  She was over 60 years of age.  Mr Dean gave evidence that he had gone to an ATM and found out that he was unable to withdraw money from his bank account.  He took the opportunity to rob the victim. He approached her from the back, he said, and slipped her bag off.  He then escaped on a bicycle. He denied in his evidence to me that there was any serious assault.

25. I do not accept that there was no serious assault on the victim. I note that the sentencing remarks[4] do not describe the assault in any detail. There is a reference to the assault having had the potential to result in injuries to the victim had she fallen over. So I proceed on the basis that the assault did not involve that type of injury.  Nevertheless, I take into account that Mr Dean committed a serious assault of some type because that is the offence to which he pleaded guilty.

    [4] Mr Dean was sentenced in relation to these offences on 29 November 2017.  See Ex R1, pp23ff.

26. All the offences I have mentioned were dealt with on the same day by the sentencing magistrate. The magistrate imposed various sentences to be served concurrently, the longest being one of 18 months’ imprisonment.  I need not set out the sentencing remarks, but I have read them closely.  I note that the net result, as described by the magistrate, was the imposition of a term of 18 months’ imprisonment coupled with a compensation order.  Mr Dean was immediately released on parole.

27. For the most part, the balance of the criminal record involves unlawful possession of a dangerous drug, that is, ice.  That is a matter of real concern.  There is one further offence of wilful damage and another offence of possession of a knife in a public place.  These are all serious offences in that they show that Mr Dean had lapsed into a life of crime centred upon the possession and misuse of drugs which led him to other crimes. I note that the Queensland police service court brief[5] indicates that Mr Dean had apparently damaged a computer in a hospital (although it was still functioning after the incident). It would appear that the charge of possession of a knife in a public place[6] involved a steak knife.  Much of the court briefs in evidence before me[7] indicate that Mr Dean, contrary to his evidence to me, was a regular ice user. He had been caught multiple times.  As I have indicated, I do not accept his evidence to me that he was an occasional user only.

    [5]  Exhibit R2, p 44.

    [6] Exhibit R2, p 48.

    [7] Exhibit R2.

28. Mr Dean was still on parole at the time of his final offence. His evidence to me was that he was in hospital undergoing treatment for painful ulcers on his leg. He said that a nurse knocked his leg against a bed rail, which caused him a great deal of pain.  That led to an argument and an attempt by him to punch her according to the police brief.

29. This event also led to the cancellation of Mr Dean’s parole and he began to serve the balance of the 18-month sentence of imprisonment in full-time custody.   As a result, Mr Dean’s visa had to be cancelled because he was serving a term of imprisonment of at least 12 months in jail, even though he was approaching the end of his term.   On 29 July 2019 the decision was taken to cancel his visa.

30. The delegate who considered representations made on Mr Dean’s behalf rejected his request that the mandatory cancellation of his visa be revoked. In reaching that decision, the delegate was required to apply, as part of his or her consideration of the matter, Direction 79[8] issued under section 499 of the Act.

    [8] Direction No 79- Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (issued under s 499 of Migration Act, 1958).

    RE-EXERCISING THE DISCRETION IN ACCORDANCE WITH DIRECTION 79

31. I am also required to apply Direction 79 in my review.  I now quote what I have put in a recent decision[9] about the Direction:

    “[24] I now turn to apply Direction 79. The Direction consists of a preamble and Parts A, B, and C. Of these parts, Part C is relevant and it identifies the considerations that I should take into account in determining whether to exercise the discretion to revoke the mandatory cancellation of the applicant’s visa. The Preamble makes it clear that where the discretion to consider revocation is enlivened, the decision-maker must consider the specific circumstances of the case.

    [25] The Preamble refers to the Government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by ‘non-citizens’. The principles listed in paragraph 6.3 are of critical importance in furthering the objective of protecting the community. They reflect community values and standards with respect to determining whether the risk ‘non-citizens’ pose is unacceptable.

    [26] The principles in question record that Australia has a sovereign right to determine whether non-citizens who pose a character concern should remain in Australia. Remaining in Australia is a privilege Australia confers on non-citizens in the expectation that they will remain law-abiding and will respect important institutions such as Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community. It is recorded that the Australian community expects that visas will be cancelled by the Government if non-citizens commit serious crimes in Australia. It is also recorded that non-citizens who have committed a serious crime should generally expect to forfeit the privilege of remaining in Australia. In some circumstances, criminal offending and the harm that would be caused if it were to be repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances even other strong countervailing considerations may be insufficient to justify not cancelling the visa. In addition, Australia has a low tolerance of any criminal conduct by people who have been participating in the Australian community for only a short period of time.

    [27] In exercising the discretion, I must follow the rules and guidelines set out in Direction 79. Information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than other considerations.

    [28] I turn now to Part C which is the relevant part. There are three primary considerations mentioned in Part C that I must consider; first, protection of the Australian community from criminal or other serious conduct; secondly, the best interests of minor children in Australia; and, thirdly, the expectations of the Australian community.

    [29] Paragraph 13.1 repeats largely what I have already recited in respect of the importance the direction places upon the protection of the Australian community. I must have regard to the principle that the Government is actively committed to protecting the Australian community from harm. The mandatory cancellation of the applicant’s visa in this case is consistent with this principle because serious offenders should remain in detention while their immigration status is resolved. I am required by Direction 79 to have regard to the nature and seriousness of the non-citizen’s conduct to date. I must also have regard to the risks to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”

    [9]  LJTZv. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3356.

32. Paragraph 13.1.1 sets out a number of factors to which I must have regard in determining the nature and seriousness of Mr Dean’s criminal offending.  I must have regard to the fact that Mr Dean assaulted an elderly woman in order to steal from her and he also attempted to punch a female nurse attending him in hospital. These were crimes of violence against women.  One of them was a crime of violence against an elderly woman.  I take these factors into account and accord them very significant weight.  Although the assault on the elderly woman did not lead to her being thrown to the ground, it is well known that handbag raids of this type can lead to this very result and, when they do, there can be very serious ongoing complications for the victims.

33. The impact of robbery upon members of the community, especially the vulnerable, should not be underestimated. Older community members’ confidence to use public places and their confidence in their own personal security are undermined greatly by this sort of attack.  I bear in mind that Mr Dean was much younger than the victim, and he was apparently fit enough to escape the scene on a bicycle. It must have been a very frightening experience for the victim. I bear in mind also that Mr Dean’s repeated misuse of ice does mean that he is at risk of becoming frequently disordered in his thinking so that he will be more likely to yield to the temptation of crime.

34. Mr Dean’s offending has involved dishonesty and whilst it has not extended to the theft of large sums, it has been strongly antisocial. There have been occasions, too, where he has been unable to control his impulses.  The damage he inflicted on the computer and the assault upon the nurse are instances of poor impulse control.

35. I must also have regard to the sentences imposed by the courts, the frequency of Mr Dean’s offending, and any trend of increasing seriousness. The sentence of 18 months Mr Dean received was a lengthy sentence in circumstances where the magistrate was explicitly aware, as the sentencing remarks show, of jail being a last resort.[10]  I think Mr Dean’s criminal record displays a trend of increasing seriousness. The offending began soon after Mr Dean’s arrival in Australia.  It had been preceded by offending in New Zealand. Clearly enough, the opportunity to begin a new life in Australia with his mother did not assist Mr Dean to stay away from crime.

    [10] Although I note the judge imposed a long sentence to ensure adequate supervision: Exhibit R1, p 24 (line 40).

1. I do have regard to the cumulative effect of repeated offending. A number of people have now suffered as a result of Mr Dean’s behaviour.

2. I must also have regard to the risk to the Australian community should Mr Dean commit further offences or engage in other serious misconduct. I must have regard to, “cumulatively”, the nature of the harm to individuals or the Australian community should he engage in further criminal or other serious misconduct and the likelihood of his so doing.

3. On the assumption that Mr Dean would engage in violent conduct, I regard the nature of the potential harm to individuals or the Australian community as serious.  In the circumstances of this particular case, however, I have had regard to the information and evidence available[11] to me in respect of Mr Dean’s present physical condition, and I doubt that he poses a real risk of serious violence.  In this connection, I refer to the evidence of Ms Subramaniam.  Her evidence was received without objection from the respondent. Ms Subramaniam referred to the fact that Mr Dean now has difficulty walking because of his marked physical deterioration.  He has poor eyesight as well. Within the next two months, he will have to commence regular haemodialysis. He was so unwell, in fact, that he had to be transferred from a detention centre in Queensland (where he was being held upon his release from jail) to a Western Australian aged-care facility, where he now lives.  He has lived there since October last year, which is some time.

   [11] Paragraph 8(2) of the Direction.

4. Ms Subramaniam indicated that Mr Dean suffers from chronic renal deterioration, amongst other conditions, and this is confirmed by the medical reports in evidence.[12] He has had several admissions to hospital.  Ms Subramaniam gave evidence that on one occasion Mr Dean was found to have lapsed into a coma and it took her the better part of an hour to revive him.

   [12] See, for example, Exhibit R3 at p 25 (“nephropathy with albuminuria”).

5. I do not doubt that Mr Dean is in very poor physical health, as is made clear in the summonsed material.[13] I do not believe that he is physically able to mount a serious threat to community members in his present physical state. Moreover, much of Mr Dean’s offending has occurred while he was living without a fixed address. If Mr Dean were to return to an intermittently homeless life, I believe he would fall seriously ill or become permanently incapacitated within a relatively short period of time, such is the threat his uncontrolled diabetes poses to him.

   [13] Exhibit R3.

6. On the other hand, were Mr Dean to enter a supported care facility, which now seems to be the only appropriate form of accommodation for him, I doubt he would engage in the behaviours that have accompanied his life on the streets.  In any event, as I have said, I doubt that in the foreseeable future he will be physically able to pose a serious physical threat to members of the Australian community. 

7. Nevertheless, I do not exclude the possibility of Mr Dean posing some sort of physical threat were he to lash out at a nurse or other caregiver.  So the threat of violence is not nil, but it is not high.  Moreover, I do not exclude the commission of crimes of dishonesty in the future.

8. In this regard, I note that Mr Dean has very limited insight into his criminal offending.  He minimised it before me, not, I believe, because he was deliberately seeking to improve his prospects, but because in his much diminished mental state, he simply lacks sufficient capacity to reflect meaningfully on his past, appreciate objectively the reasons for his offending, and assess reasonably its impact upon victims.  I accept that this does make him a greater risk than he would otherwise be, but I must balance against that his much diminished physical state.

9. I must consider the best interests of minor children. I do not believe that any such interests arise in this case. I must also have regard to the expectations of the Australian community. In this regard I note that I am not to decide these for myself; but rather, according to the recent full court decision in in FYBR v. Minister for Home Affairs [2019] FCAFC 185, I am to take those expectations as encapsulated within the Direction. These clearly favour affirming the decision under review.

10. I must also have regard to other considerations. These are listed in a non-exhaustive list of five in paragraph 14 of the Direction.  I do not believe any international non-refoulement obligations arise for my consideration. There is equally no impact on Australian business interests that I need consider. I have no evidence in respect of the impact on victims and so I leave this factor to one side. The two categories which are relevant are “the strength nature and duration of ties” and the “extent of impediments” Mr Dean would face if he were removed to New Zealand.

11. Turning to this latter factor, I believe Mr Dean would face very serious impediments were he deported to New Zealand.  I have regard to the fact that Mr Dean is now unable to look after himself or live independently.  Although Auckland is not a place that is unfamiliar to him, he does not have any obvious family members or friends to whom he is close and to whom he might readily turn; and his care would soon prove a burden to them in any event.

12. In my opinion, even if I make the assumption, which I am happy to make, that New Zealand’s system of social welfare is the equivalent of Australia’s and perhaps even superior, it remains the case that Mr Dean would need immediately to be accommodated in a supported-care facility with appropriate supports. Ms Subramaniam made it clear that Mr Dean’s eyesight had now deteriorated to the point where he requires someone to administer medication to him and that he has difficulty walking. It is clear that Mr Dean will need to live in some sort of supported-care facility so that his diabetes can be managed properly and so that he can receive appropriate medical treatment, including the haemodialysis he will soon require.

13. That challenge, of course, remains at the present time in Australia as well.  As I understand matters, he cannot stay in Ms Subramaniam’s care indefinitely: she has only received him into the facility because the Commonwealth Government has entered an arrangement with the facility for the care of immigration detainees.   That said, I think it is appropriate to surmise that Ms Subramaniam and appropriate Australian government agencies acting together will have a better chance of securing appropriate accommodation and support for Mr Dean than would the welfare authorities in New Zealand taking on the case “cold” so to speak.  In Mr Dean’s case, I regard this as an important consideration.

14. I must also have regard to the strength, nature, and duration of ties. The exercise of the discretion to revoke cancellation of the visa is properly informed, in my opinion, by considerations of ordinary humanity. Mr Dean made a sincere and heartfelt submission, which was not in any way contrived or maudlin, seeking a final opportunity to see his mother again in whatever time remains to him. Mr Dean has not been informed by the doctors that he is soon to die. I do not act on that basis; but he is clearly unwell, and his condition is likely to become worse.  I accept that he is a relatively young man, but his diabetes has been quite poorly controlled for a long time, and he has a chronic renal condition that will soon require haemodialysis on a regular basis. Ms Subramaniam indicated that the damage to his kidneys is irreversible.  I also take into account the probable debilitating effects of his past ice usage. All in all, I act on the basis that Mr Dean does have a much-reduced life expectancy given his very poor health.

15. I do not know fully what happened in the household at Mareeba that caused Mr Dean to leave. His evidence did not give a full account of the relationships there.  It would appear that he has not maintained contact with his mother.

16. I do accept Mr Dean’s evidence that he feels ashamed of his circumstances and of the much reduced man he has become, both from a physical aspect and also because of the judgments that might be made adversely about his character. These matters are weighing heavily on his mind at the present time. 

17. I think that Mr Dean has had a difficult life.  He was deprived at a young age of parental supervision and affection, and he lost a grandparent, who was acting as a substitute paternal figure, at a young age as well. The death of his grandmother when he was still a relatively immature 20-year old affected him, I believe, quite substantially, as he said. His life appears to have been not only arduous but also unsettled. It has included many periods of isolation and moves from one house to another.  It would appear that he has never found a truly settled home environment. The desire for Mr Dean to be reunited, if possible, with his mother is a factor to which I ought to accord real weight in the circumstances of this case.

18. I believe I should also take into account Mr Dean’s mother’s interest in seeing her son. I do not have information before me that suggests one way or the other what the nature of the relationship is at the present time from her perspective. Ms Subramaniam has done her best to encourage Mr Dean to make contact, but with no success to date.[14]  In the absence of evidence, I do not think I should proceed on the basis that Mr Dean’s mother has no interest in seeing her son again.  That would be contrary, I believe, to the natural bonds of affection that a mother would feel for her child, even when the child has a very chequered history marred by drug abuse and criminal convictions as Mr Dean has. Although on the evidence before me, it appears that she is unaware of his present circumstances, it is, I believe, in her interests for Mr Dean to remain in Australia so that she can visit him (even if she does not wish to have him live with her) and to assist him. I think that interest is one I should take account of.  Mr Dean’s deportation to New Zealand would much diminish the chance for there to be a reconciliation of this type, even if it did not eliminate it for all practical purposes.

    [14] I note that after I delivered my oral reasons,  Ms Subramaniam indicated Mr Dean had agreed to contact his mother.

19. I should also add that Mr Dean indicated in his evidence that he wished to contact his mother, but only when he was re-established and had recovered. It is clear to me that this is an unrealistic precondition. It is far more likely that Mr Dean will not recover to any marked degree. If Mr Dean persists in declining to contact his mother pending what he hopes will be a recovery, I rather suspect he will not see his mother again. But I think there is some possibility that Ms Subramaniam (who has taken a commendably active interest in Mr Dean’s welfare) will succeed in persuading him to contact his mother, although she has not been successful to date.[15]  I have made allowance, therefore, for the possibility of a reconciliation.

    [15] But see supra, fn 14.

20. In weighing the discretion, I proceed on the basis that the impediments Mr Dean would face in re-establishing himself in New Zealand are significant given the illnesses he presently faces and his inability to live independently.  In my opinion, given the hardships Mr Dean has endured in his life, although many may be self-inflicted, a humane exercise of the discretion requires me to give some significant weight to Mr Dean’s desire to see his mother again and, I believe, I must also give some significant weight to Mr Dean’s mother’s interest in seeing her son.

21. On the other hand, I am acutely aware that I am required by the Direction to prefer “generally” primary considerations over the other considerations. Some of the offending Mr Dean has committed in the past has been very serious, and he has shown an alarming tendency to use drugs which have led him to strongly antisocial behaviour.  Criminal behaviour has a significant impact on innocent people.  Whilst he is in a much diminished state, there is some, although a reduced, risk of his reoffending, as I have said.

22. In other circumstances, Mr Dean’s criminal behaviour, viewed in its totality, might well have resulted in a confirmation of the decision to deport him, especially since the receiving country is New Zealand, where I can safely assume that there is an equivalent society so far as the provision of welfare services and benefits is concerned.  Nevertheless, the Direction makes it clear that I am to have regard to the specific circumstances of the case.[16] This particular case has very unusual features, and, in my opinion, the “other considerations” I have identified in this case and am required to weigh up do outweigh the primary considerations that favour deportation.

    [16] Paragraph 6.1(3).

23. I have, therefore, decided to set aside the decision under review and to substitute a decision that the visa cancellation be revoked. 

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.  

.......[sgnd]..................................

Administrative Assistant Legal

Dated: 4.09.2020

Date of hearing:   3.08.2020; 10.08.2020           

Applicant:Self-represented, assisted by Ms D Subramaniam, Mosman Park Aged Care Home

Respondent’s representative:   Mr C Brinley, Clayton Utz