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

[2020] AATA 4262

Dearing and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4262 (28 September 2020)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )  No: 2020/4151
GENERAL DIVISION  )

Re: Kevin Barry Dearing
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:   Senior Member N A Manetta

DATE OF CORRIGENDUM: 9 November 2020

PLACE:                    Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

1. In paragraph [2], line [1], “Kevin” is to replace “Michael”.

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

Senior Member Manetta

Division:GENERAL DIVISION

File Number(s):      2020/4151

Re:Kevin Barry Dearing

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:28 September 2020

Date of written reasons:        27 October 2020

Place:Adelaide

For the reasons given orally at the conclusion of the hearing, 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

Migration - mandatory visa cancellation – whether cancellation should be revoked– applicant convicted of serious criminal offences - trafficking offences – possession of firearms – primary considerations - protection of Australian community – nature and seriousness of the conduct - risk to Australian community – interests of minor children- expectations of the Australian community – other considerations - decision under review set aside and substituted.

Legislation

Australian Citizenship Act 2007

Migration Act, 1958

Cases

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

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

Secondary Materials

Migration Act 1958, Direction 79 under section 499.

REASONS FOR DECISION

Senior Member Dr N A Manetta

27 October 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 Kevin Dearing seeking a review of the respondent’s delegate’s decision dated 14 April 2020.  The delegate decided not to revoke the earlier decision taken in the respondent’s department to cancel Mr Dearing’s visa.[1] Mr Dearing’s visa had been cancelled mandatorily under s 501 of the Migration Act, 1958 (“the Act”) on account of certain offences that I shall describe in due course.  At the hearing before me, Mr Dearing was represented by Mr Simmons; the respondent, by Mr Chan.

   [1] A Class BF Transitional (Permanent) Visa.

   STATEMENT OF TASK AND CONCLUSION

3. Hearing the matter afresh on the evidence before me, I must decide whether Mr Dearing’s visa cancellation should be revoked. I must conduct a de novo hearing on the merits.  I may affirm the decision under review notwithstanding any error in the delegate’s decision if that is the correct or preferable decision to reach on the evidence before me.  Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the preferable or correct decision to take on the application.   

4. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Dearing’s visa should be revoked.  I now set out the background facts and the reasons for my decision.

   BACKGROUND FACTS

5. Mr Dearing arrived in Australia in 1970 as a British citizen.   He came with his parents and sister when he was four years old.  He has never become an Australian citizen. 

6. There is nothing in Mr Dearing’s early years that is remarkable. He had a normal upbringing in a supportive and loving household.   He undertook all his education here, and after school he worked as a carpenter.  He has significant experience in the building trade.  He is now 55 years of age.

   CRIMINAL OFFENDING

7. I now turn to Mr Dearing’s criminal offending.[2] In 1984, when Mr Dearing was about 18, he committed the offence of larceny. In his evidence, which I accept, Mr Dearing said he stole a fence paling. He was fined and convicted for this offence.  Mr Dearing had no other offences recorded against his name for some nine years.

   [2] Ex R1, pp 27-28.

8. The next offence occurred in 1993.  It resulted in a finding of guilt and a fine of $100, but no conviction was recorded.  The offence involved damaging property. I accept Mr Dearing’s evidence that he had damaged his own car out of frustration.  This offending occurred after he had found out that his then wife was having an affair.

9. The next offence, in 1994, involved resisting police and offensive language. This involved minor offending as well: Mr Dearing was convicted, but fined $80 only. I accept that the offending occurred outside a nightclub when he and a friend felt aggrieved that they had been excluded on account of their footwear.

10. The next three offences all occurred in 1996 in Western Australia, where Mr Dearing had decided to go after the breakdown of his marriage.  The offences involved driving a vehicle while exceeding the prescribed alcohol-limit of .08% and two further offences of driving whilst his licence was suspended.  I do not accept Mr Dearing’s evidence that he was unaware of the suspension; but overall, the offending is relatively minor.

11. There was no further offending until 2000.  In this year, Mr Dearing was convicted of carrying an offensive weapon and fined $200. The offensive weapon consisted of a white billiard ball secreted in a sock. 

12. The next offence involves unlawful possession of a drug (namely amphetamines) in 2003. On that occasion Mr Dearing was convicted and fined $500.  His next offence is from 2004 and involved driving an unregistered motor vehicle. He was convicted on that occasion and fined $300. 

13. There was no offending for about seven years after that until 2011, when Mr Dearing was convicted of cultivating more than the so-called “prescribed number” of cannabis plants. He was fined $600 on that occasion but no conviction was recorded.

14. All in all, the offending I have described so far has not been particularly serious, although there have been many offences. In two cases, the offending did not result in a conviction being recorded.  In addition, I note that there have been many years interspersed in this extensive period in which there was no offending at all. 

15. I would also note that the first 27 years or so of Mr Dearing’s life did not see any conviction apart from the minor conviction for larceny of the fence paling. None of the offences committed before 2014 (when he was approximately 49 years of age) involved the imposition of a jail sentence, suspended or otherwise. All in all, therefore, I would assess Mr Dearing‘s history of offending up to 2014, when he was nearly 50, as relatively minor. 

    SERIOUS OFFENDING IN 2014

16. After the last offence in 2011 to which I have referred, offences were committed in 2014 that were particularly serious.  These offences involved the possession of a controlled drug (not being cannabis) and the possession of a prescribed quantity of an illicit drug precursor (i.e., the possession of drug-making ingredients). There was also a charge of trafficking in a controlled drug.  Firearm offences (i.e., possessing firearms without a licence) were also charged. Convictions were recorded in respect of these offences.

17. The offences occurred on 13 June 2014.  I have considered carefully the sentencing remarks of the District Court delivered on 29 May 2018.[3]  For reasons I need not explain, the hearing of the matter had been delayed for quite some time.  I proceed on the basis that the remarks accurately reflect the offending that occurred on that date.

    [3] Ibid, pp 29ff.

18. The Court records the background to the offending in the following way.  The police attended Mr Dearing’s warehouse at Seaford after receiving information about the possible storage of drugs and firearms there.   Mr Dearing’s home was at Aldinga Beach some distance away. 

19. Police located a total of 31.58 g of mixed-weight substance containing 5.3 g of MDMA and 2.31 g of MDEA. The police also found 4 litres of hypophosphorus acid, which is a controlled precursor used in the manufacture of drugs, and $1,390 in cash.  They also located small quantities of crystalline powder in press-seal bags containing traces of methylamphetamine. This discovery was not, however, the subject of any charge. 

20. Approximately 3 g of methylamphetamine were discovered in Mr Dearing’s vehicle together with a further 0.46 g of material containing methylamphetamine. A set of digital scales was found as well.

21. On the same day, the police found secreted in various locations at Mr Dearing’s Aldinga Beach residence a total of almost 14 g of mixed-weight substances containing 1 g approximately of MDMA and 0.8 g of MDEA. A plastic tub containing 2.64 g of crystalline material was also discovered containing 0.75 g of methylamphetamine.  Just under 1 kg of female cannabis plant material and 45.7 g of cannabis resin were also discovered.

22. So far as the firearm offences are concerned, police located a disassembled non-operational pistol at Mr Dearing’s residence having earlier discovered a .22 calibre rifle at the warehouse.

23. Mr Dearing pleaded guilty to the offences listed above at [16] in the week before his trial. He was, therefore, eligible for a so-called “statutory” discount of ten per cent under the applicable sentencing legislation.

24. The Court explicitly referred on sentencing to the seriousness with which the offending in question had to be regarded. The Court observed that the production and sale of drugs caused great harm in the community. It noted as follows:[4]

    “By involving yourself in the trafficking of drugs, and by assisting others by storing such drugs, you contributed to the trafficking of those drugs to others. Such drugs have the capacity to cause physical and psychiatric harm to those who use them and by your actions you may well have contributed to such harm.”

    [4] Ibid, p 35.

25. The Court found, however, that it had not been established beyond reasonable doubt that the firearms were possessed for any criminal purpose nor that they had been used for any such purpose.

26. The Court decided to impose a single penalty in respect of the drug offences, which it said were part of an ongoing course of conduct designed in part at least to fund Mr Dearing’s addiction to drugs.[5]  Mr Dearing was sentenced to four years and six months in respect of the drug offences. The possession of the .22 calibre rifle was punished by a sentence of imprisonment for three months. As for the offence involving the non-operational pistol, a fine of $900 was imposed.  A non-parole period of two years was fixed.

    [5] Ibid.

27. I fully accept the sentencing remarks. Mr Simmons submitted that in certain respects the remarks were unfounded.  In particular, I note that Mr Simmons submitted that Mr Dearing’s only offending involved possession of the drugs and that he was not actively involved in trafficking them. This submission was also made to the Court and was explicitly rejected.  The submission put to the Court was that Mr Dearing had simply been foolish and agreed to a friend’s request that he store drugs at his premises. The multiplicity of drugs found at the warehouse and at Mr Dearing’s house indicated a much deeper involvement than mere possession, according to the Court.[6]  I accept this finding entirely.

    [6] Ibid, p 32.

28. In addition, Mr Simmons submitted that the Court had no evidence before it to warrant its conclusion that Mr Dearing had been addicted to drugs. The Court must have heard or received appropriate evidence, in my opinion, concerning Mr Dearing’s drug habits. This evidence led the Court to a clear finding that Mr Dearing had been a recreational user of cannabis, amphetamines, ecstasy, and cocaine, for a prolonged period.[7]  Mr Dearing is recorded as having indicated to the Court that his use of such substances was “periodic”.[8] I proceed on the basis that the Court’s findings in this regard were accurate and justified.

    [7] Ibid.

    [8] Ibid.

    VISA CANCELLATION

29. It is clear that Mr Dearing had been sentenced to a term of imprisonment exceeding 12 months that he was required to serve, at least in part, on a full-time basis in gaol. This resulted in the mandatory cancellation of his visa under s 501. The initial cancellation was clearly correct in law and Mr Simmons did not submit to the contrary.

30. If Mr Dearing was to have the visa cancellation revoked, the respondent’s delegate had to be satisfied that there was a reason warranting its revocation. The delegate decided against Mr Dearing. The delegate was guided by Direction 79, issued under section 499 of the Act. I, too, am required to consider and apply this Direction.

    RE-EXERCISING THE DISCRETION UNDER DIRECTION 79

31. I now consider Direction 79. In other cases I have considered Direction 79, and I quote what I put in a previous case in respect of the Direction[9]:

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

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

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

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

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

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

32. I now turn to apply the Direction.  I must have regard to the protection of the Australian community from criminal or other serious conduct as a primary consideration. I must also have regard to the principles set out in paragraph 13.1(1). I must take into account the nature and seriousness of Mr Dearing’s conduct to date and the risks to the Australian community should he commit further offences or engage in other serious misconduct.

33. Of sub-paragraphs (a) to (i) that are listed, I note that I must have regard to the sentences imposed by the courts for Mr Dearing’s crimes. In this regard, I note that Mr Dearing’s earlier offending did not attract a custodial sentence on any occasion, suspended or otherwise. Whilst the earlier offending taken in totality has some anti-social elements and indicates a defiant, rather than a compliant, attitude towards the community’s expectations of law-abiding behaviour, all in all the offending is relatively minor.

34. The drug and firearm offences are clearly of a different order, however. The total sentence imposed by the Court was lengthy. I note that the sentences were discounted on account of the guilty plea and because the Court had regard to the fact that the offending might lead to cancellation of Mr Dearing’s visa. Had those features not been present, the sentence would have been even longer. 

35. The lengthy sentence reflected the gravity of the offending. There is a strongly anti-social element in the trafficking of drugs. There can be no doubt that his Honour was quite correct, with respect, to refer to the physical and psychiatric harm that drugs wreak upon members of the community, many of whom are vulnerable by virtue of an addiction brought on by use arising from others’ trafficking. In particular, methylamphetamine, or “ice”, is a highly addictive drug that produces serious consequences for an addict.

36. I must have regard to the frequency of Mr Dearing’s offending and to any trend of increasing seriousness. I have regard here to the fact that Mr Dearing’s criminal history, whilst minor in its earlier stages did contain quite some number of offences (although I also take into account that there were lengthy periods when Mr Dearing was not in trouble with the law).  I take into account that there has been a recent and very serious escalation in the seriousness of offending so far as the drug and firearm-possession offences are concerned.

37. There have been many offences now and I must take into account the cumulative effect of repeated offending. I do so, but I note again that the earlier offences were relatively minor.

38. Taken as a whole, Mr Dearing’s offending, including his more serious recent offending, displays an attitude of hostility towards law-abiding behaviour which is expected of all people who live in Australia, whether citizens or not.

39. I must also have regard to the risks to the Australian community should Mr Dearing commit further offences or engage in other serious conduct. I must have regard to, “cumulatively”[10], the nature of the harm to individuals or the Australian community should Mr Dearing engage in further criminal or other serious conduct, and, secondly the likelihood of his engaging in further criminal or other serious conduct taking into account available information and evidence on the risk of his reoffending.

    [10] Paragraph 13.1.2.

1. So far as the first factor is concerned, I have very real concerns about the harm that drug-trafficking inflicts upon the Australian community. I have already referred to the highly addictive nature of ice, in particular, and the vulnerability of those who find themselves dependent upon it. There is no doubt that this drug in particular is a very destructive one: it can injure people mentally and physically.  The effects can be quite acute and permanent.  Those who participate in the trafficking of drugs pose a considerable threat to others in the community. I take into account that drug addiction is a serious issue in the South Australian community where Mr Dearing plans to reside. I also take into account that it is a growing, and not diminishing, societal problem, and that Mr Dearing has played a role in exacerbating the problem.  The trafficking of drugs is not easy to detect or police. These are very serious factors to weigh up in this case.

2. I must also have regard to the likelihood of Mr Dearing re-engaging in this conduct. Here, I would first note that Mr Dearing for the most part sought to discount his involvement in the trafficking charges. He maintained before me that he was merely doing a favour for a friend who was worried about having drugs and drug-making paraphernalia in his possession while his daughter was living with him.  I reject this evidence and I note that it is inconsistent with the sentencing judge’s remarks, to which I have earlier referred, and also with the common sense of the situation.

3. I would point out here that in answer to a question from me as to why he did not at some point tell his friend that he should hire some sort of storage facility and keep his material there rather than involve him in criminal conduct, Mr Dearing said, in effect, that he had a very generous spirit and was willing to do this friend a favour.  I did not find this evidence credible. I note also that Mr Dearing had earlier sought to minimise the carrying of a billiard ball in a sock (this was the earlier offending involving possession of an offensive weapon).  He said he had innocent intentions and was merely carrying around what he called his “lucky ball” because he had intended to play billiards that day in the city. Again, I found this evidence unconvincing.

4. Given the consequences of deportation for an individual, it is not surprising that applicants to this Tribunal sometimes seek to discount their criminal offending substantially. The pressure or incentive to seek to minimise or deny behaviour is self-evident; however, I am clearly of the view that where that course is chosen, I cannot discern in an applicant’s favour any degree of remorse, in the sense of genuine regret for the consequences caused to other community members.

5. In this case, I have no persuasive evidence before me that Mr Dearing is remorseful in this sense. I do not doubt that Mr Dearing now regrets his own recklessness because he has been caught, has experienced both gaol and immigration detention, and now faces the prospect of deportation.  But his evidence did not reveal remorse in the sense I earlier identified.

6. Having said that, I have concluded that Mr Dearing does represent a low risk or reoffending. I take into account a number of factors.  In my opinion, given his recent experiences of jail and detention and of the very real prospect of deportation, he appreciates fully that any further criminal offending will see him lose precious years of his remaining active life and result in his deportation to the United Kingdom.  I accept also that his time in jail and his time in immigration detention have caused him to re-examine his conduct, as he himself said.  He is now 55 years of age and capable of more mature deliberation in this regard.

7. I note that any physical dependence he had upon drugs and alcohol, to which the sentencing judge referred, will now have ended. He has spent considerable time in gaol and immigration detention.  That said, I accept that the use of drugs by any individual has a multifaceted dimension. The end of physical addiction does not mean that the former addict will not relapse in the future.

8. There remains, however, the fact that in this case Mr Dearing does have a very strong deterrent not to engage in any further drug-taking as that behaviour may well lead him down a slippery slope, so to speak, to trafficking, as it appears to have done so in the past. The consequences of further offences are clear to him.

9. I also note in this regard that Mr Dearing’s friend with whom he engaged in the trafficking offences, a man who was identified at the hearing before me as “Max”, is now dead.  That man was apparently a member of an outlaw motorcycle gang. The evidence before me does not support on balance the inference that Mr Dearing himself was a member of the gang. The temptation to become associated with the criminal activities of the gang is now much diminished as Max is now dead.

10. I accept that Mr Dearing is genuinely seeking to establish contact with an estranged daughter and her child.  I accept Mr Dearing’s evidence that he left his wife immediately upon learning of her affair and ceased contact with his children when they were infants.[11]  His steps to re-establish contact are tentative at the moment.  There is no guarantee of success, but I accept Mr Dearing’s evidence that it is important to him in the years that remain to him to contribute meaningfully to a new family life if he can.

    [11] Ex R1, p 32.

11. Deportation will of course destroy that possibility more or less entirely. There is a strong incentive, therefore, for Mr Dearing to avoid deportation in the future if he wishes earnestly to contribute to family life, as I believe he does.

12. Mr Dearing also expressed a concern that he wished to contribute to his parents’ future care, as they grow frailer in the future.

13. Overall, Mr Dearing impressed me as a person who understood that he was very much at a crossroads at this stage of his life. Unless he makes a contribution now to his family, he will effectively grow older and lose all prospect of developing that potentially meaningful part of his life.  That is a matter that weighs heavily upon him.  I think Mr Dearing has, therefore, a very strong personal incentive to avoid relapsing into criminal behaviour.  This aspect of his evidence to me was persuasive, even though other parts of it were not.

14. The conclusion that Mr Dearing poses a low risk of reoffending to the community is consistent with the most psychological report from Mr Kassapidis, which I accept.[12]  Taken as a whole, the evidence before me justifies a conclusion that Mr Dearing poses a low risk of re-offending. That does not mean, of course, that he represents no risk but the risk is in my opinion low, because Mr Dearing understands and dreads the consequences of further offending and deportation and also because he has strong personal incentives to reform himself.

    [12] Ex A11.  Earlier reports from 2017 are of more limited relevance.

15. I must take into account the best interests of minor children in Australia affected by my decision. In this regard, I note that Mr Dearing has no non-adult children of his own and has no contact with any of his grandchildren. I accept that he is seeking to establish contact with his long estranged daughter and her child, but that process is at an early stage and it is not at all clear that he will be successful in re-establishing meaningful contact and building a functioning relationship. I also leave to one side any consideration of Mr Dearing’s grandchildren.

16. I accept that Mr Dearing has contributed meaningfully to the upbringing of a friend’s son who has recently had serious troubles and may continue to have troubles with the law.[13] He has acted as a mentor and father-figure for that adolescent. I accept that the adolescent will soon turn 18 (he is currently 17 years of age) and so whilst I take this factor into account I must also limit its relevance in my weighing-up in accordance with the Direction.[14]  I must also have regard to the fact that the relationship is not one of father and son. I have no information before me as to the impact of Mr Dearing’s offending on the minor.  It is nevertheless the case that Mr Dearing has had, on the evidence before me, a positive role to play in the upbringing of this adolescent, and I believe that factor counts in his favour as  a primary consideration, albeit it in a limited way given the minor is now 17.

    [13] Ex A7 and evidence of Ms Newham.

    [14] Para 13.2(4)(b).

17. I must weigh up the expectations of the Australian community as a primary consideration. These are given in the direction itself according to the full Federal Court decision in FYBR v. Minister for Home Affairs [2019] FCAFC 185. I need not set out that decision in any detail but it is clear to me that this factor weighs against Mr Dearing substantially since the expectations of the Australian community would clearly be against Mr Dearing’s remaining in Australia given his recent serious offending.

18. I must also have regard to other considerations. There is a non-exhaustive list of five such considerations.[15]

    [15] Para 14.

19. I do not see that any non-refoulement obligations are relevant in this case.  I do not think that either of the two categories of impact on Australian business interests and impact on victims is relevant in this case either.  This leaves two categories.

20. The first category is the strength, nature and duration of ties. I accept here that Mr Dearing has only ever lived in Australia after arriving at the age of about four.   All his family lives here. He has no connection with family in the United Kingdom and would have to establish contact with remote family members from scratch were he deported.  He has not left Australia since arriving in 1970.

21. Mr Dearing has a long-standing relationship with a partner. This relationship has lasted 18 years. His partner gave evidence to the Tribunal. I came away from that evidence believing that she has difficulties in maintaining herself independently. I accept that she holds down a full-time job as an aged person’s carer but she gave evidence in a hesitant and sometimes confused manner that reflected limited life skills and insight.  I should say that I do not proceed on the basis that Mr Dearing’s partner suffers from bipolar disorder (as this has not been diagnosed), but her evidence reflected quite limited thought processes in my opinion. I accept that both Mr Dearing and his partner wish their relationship to continue. It is an open question, I believe, whether Ms Wall could follow Mr Dearing to the UK although she would no doubt wish to.  She may choose to do so in the end, but she would, of course, have to give up her paid work here and face the prospect of living on social security benefits in the UK at least initially.  That would be a significant challenge for her.

22. I am concerned that both Mr Dearing and his partner have used drugs recreationally in the past. I am concerned also that future recreational drug use by Mr Dearing’s partner that involved addictive drugs may well lead to a relapse by Mr Dearing and lead to his further involvement in trafficking. I accept that that is a risk. Nevertheless, I believe that Mr Dearing’s relationship with his partner is, on balance, a stabilising feature in his life. He has shown himself at different times to be capable of responsible and law-abiding behaviour for extended periods. The sentencing judge referred in positive terms to his work history and to his contribution to the community.[16] I believe the relationship between Mr Dearing and his partner is a genuinely loving and supportive one.

    [16] Ex R1, 33,35.

23. I accept that Mr Dearing also has a very close relationship with his sister who lives in Western  Australia.  She gave evidence to the Tribunal that she would be greatly affected by his deportation. I take that into account.

24. The evidence before me also suggests that Mr Dearing’s parents, whilst they do not presently need his assistance, will most probably require his help in the future as they face their declining years.[17]   Mr Dearing’s sole sibling, living as she does in Western Australia, is not able to attend to the parents’ needs in South Australia on a regular basis.  Whilst I have disbelieved Mr Dearing’s evidence to me in some respects, I do accept that he  genuinely wishes to assist his parents and to repay to them the care and affection they showed him when he was growing up. The parents’ interests are important in the circumstances of this case. There is a practical need that they will have for assistance from their son in the not too distant future and I also take into account, albeit to a limited extent, the stress his deportation would cause them emotionally. 

    [17] See Ex R1, p 129.

25. I accept that Mr Dearing would face impediments initially were he to be removed to the United Kingdom.  He would have no language difficulties and the social welfare structures would be broadly comparable to those in Australia; but I do doubt that he would find work immediately given the downturn in the economic situation of the United Kingdom, amongst other Covid-19-affected countries. Nevertheless, I believe that he would in time be able to find work in building and carpentry.

26. I do not believe Mr Dearing’s health concerns are a matter that weigh in his favour. I was asked to take into account the possible effects of the coronavirus on Mr Dearing whose age and health profile (he suffers from Chronic Obstructive Pulmonary Disorder) mean that he will be at a heightened risk of serious illness if he contracts the virus. I have decided not to take this  matter into account in this case. Whether Mr Dearing would, or would not, catch the virus in the United Kingdom is a speculative question.  By following recommended social-distancing and hygiene practices, a person is able to protect himself or herself to some degree at least.   I do accept that  the  virus is highly contagious and that even those who take precautions may accidentally acquire the virus despite the taking of precautions; but in the circumstances of this case I am not satisfied that there is enough evidence before me to evaluate meaningfully what additional risk to Mr Dearing’s health there would be that he could not avoid or at least mitigate with due care.

27. I also take into account the fact that Mr Dearing has made a contribution to community life in Australia. There are a number of references in evidence before me from people who have indicated that he has assisted them.[18] The sentencing Court also referred to that contribution.[19] I also take into account that he has a positive role to play in the future development of his friend’s son once that son turns 18. That positive role ceases to be a primary consideration under the Direction once the adolescent turns 18, but I believe it becomes “another consideration” to which I should have regard under paragraph 14 of the Direction after the adolescent attains his majority. The evidence before me suggests that this person may not know who his biological father is.  As I have said, he is apparently in some trouble with the law and may be said to be at something of a crossroads in his life. He will either resume a law-abiding life or become further entrenched in anti-social behaviour with all the consequences of that for him and his mother.  He is presently becoming involved in trade-training and apparently looks up to Mr Dearing as something of a step-father.   I accept the boy’s mother’s evidence in this regard.

    [18] Exs A4, A6, and R1 at 116, 118.

    [19] Ex R1, p 33.

    FINAL WEIGHING OF FACTORS

28. The weighing of the factors in this case has caused me considerable difficulty.  I accept that I must generally give greater weight to primary considerations as required under the Direction. I accept that Mr Dearing’s most recent offences, especially the drug offences, are strongly antisocial. I also accept that any reoffending, if it occurred, would pose a substantial risk to the Australian community. I also note that I have concluded that there is still a risk to the Australian community that Mr Dearing will reoffend although I have assessed it as low. I accept also that the Australian-community-expectations criterion weighs strongly against Mr Dearing.

29. On the other hand, my conclusion is that Mr Dearing is at a low risk of reoffending in this way. I accept that he has a partner, whom he loves and who is dependent upon him, and he has other family members (his parents) who will eventually be dependent on him for his assistance, love and support. I believe that Mr Dearing has demonstrated in his relationship with his partner, which is of some 18 years’ duration, that he does value the importance of commitment in his relationships.  The interests of these other people do favour revocation of the cancellation decision even if I make the assumption that his partner could, and would, follow him to the United Kingdom if Mr Dearing were deported. 

30. I must also have regard to the fact that Mr Dearing is likely to experience some difficulty at least initially in establishing himself in the United Kingdom given his age, his lack of familiarity with the country, and the more difficult economic circumstances that the United Kingdom is presently experiencing in the pandemic.  I also accept, however, that Mr Dearing will have no language difficulties or general difficulties adapting to societal structures, and that he has skills that are frequently in demand.  I believe he will find work eventually.

31. I also accept that Mr Dearing does have an important role to play, which he has played in the past, in respect of his friend’s adolescent son, who has benefited from his association with Mr Dearing and who has now begun to deviate from a law-abiding life in Mr Dearing’s absence. I believe that future contribution is one to which I should have regard.

32. My decision would have been made somewhat easier if Mr Dearing had demonstrated to me a genuine remorse, in the sense of concern for the  harm that his offending has inflicted on others.  At the present time I am not persuaded that Mr Dearing experiences any remorse of this type. 

33. Nevertheless, the Direction requires the risk of reoffending to be considered and is not concerned with remorse as such.  I believe that whatever lack of remorse Mr Dearing presently feels, both gaol and, more importantly, detention as the immediate precursor to deportation, have not failed to impress upon him the reality of what lies ahead if he chooses to reoffend in a serious way. That is to say, I believe he genuinely fears, and is deterred by, the prospect of future gaol terms, detention and eventual deportation. I have also referred to his strong desire to seek to build a family life with his estranged daughter and her child if he can and to offer meaningful support to his ageing parents.

34. Notwithstanding the strongly antisocial aspect of Mr Dearing’s drug trafficking, I have concluded that I ought to set aside the decision under review in this case. The decision I have taken is a finely balanced one.  I have taken into account the matters I have considered in these reasons.  There is, of course, a danger in oversimplifying the complex weighing process required under the Direction; but I might state that it has been important to my final view that I have been able to conclude that the risk of reoffending is low enough to allow the other considerations I have identified in Mr Dearing’s favour to prevail over the primary considerations of risk, protection of the Australian community and of community expectations.  These latter considerations are, I acknowledge, primary considerations that generally carry more weight, as the Direction makes plain.   As I have indicated, my decision is a finely balanced one.

    FORMAL DECISION

35. The formal decision of the Tribunal will be to set aside the decision under review and to substitute a decision that the cancellation of Mr Dearing’s visa be revoked.

I certify that the preceding 74 (seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Manetta.

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

Administrative Assistant Legal

Dated: 27 October 2020

Date of hearing:   8 September 2020, 9 September 2020, 18 September 2020  

Applicant:  Mr Simmons of MSM Legal

Respondent’s representative: Mr Chan of Sparke Helmore Lawyers