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

Devenport and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4508 (2 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/6677
Re:Anthony Devenport
APPLICANT

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

DECISION
Tribunal:Member R Maguire
Date:2 December 2021
Place:Brisbane

The decision under review is affirmed.
...........................[SGD].......................................
Member R Maguire
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – breaches of apprehended violence orders – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Brown v Minister for Immigration and Citizenship [2010] FCAFC 33; (2010) 183 FCR 113
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Khalil v Minister for Home Affairs [2019] FCAFC 151
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member R Maguire
6 December 2021
INTRODUCTION AND BACKGROUND

On 2 December 2021, the Tribunal published its decision in this matter as permitted by the decision of the Full Court of the Federal Court of Australia in Khalil v Minister for Home Affairs [2019] FCAFC 151.
The Tribunal now sets out the reasons for its decision.
By application dated 17 September 2021 the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 9 September 2021 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention: s 501(12) of the Act.
The Applicant is a 39-year-old citizen of New Zealand. The Applicant was born in New Zealand and first entered Australia when he was 4 years old on 4 May 1987 and departed Australia on 30 May 1987. He returned to Australia on 1 October 1989 when he was 6 years old and has remanded in Australia ever since.[1]
[1] Exhibit G1, G-Documents, G2, page 86.
On 7 August 2020, the Applicant was sentenced in the Drug Court of New South Wales to an aggregate term of imprisonment of 22 months for one count of break and enter of a house, six counts of contravening a prohibition/restriction of an AVO (domestic), two counts of having goods suspected stolen in/on premises, two counts of larceny, one count of possessing a prohibited drug and four counts of receiving/disposing stolen property.[2]
[2] Exhibit G1, G-Documents, G2, pages 22-32.
On 3 February 2021, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to s 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test (substantial criminal record) on the basis that s 501(7)(c) was satisfied, i.e., that he had been sentenced to 12 months or more imprisonment. [3]
[3] Exhibit G1, G-Documents, G2, page 87.
Notice of this decision was given to the Applicant on 3 February 2021.[4] In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister on 24 February 2021 within the period and in the manner specified.[5]
[4] Ibid.
[5] Exhibit G1, G-Documents, G2, pages 54-83.
On 9 September 2021, the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act,[6] and on 17 September 2021 the Applicant made the present application to this Tribunal for a review of that decision.[7] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[6] Exhibit G1, G-Documents, G2, page 7.
[7] Exhibit G1, G-Documents, G1, pages 1-6.
The hearing of the instant application was heard on 16 and 26 November 2021. The Applicant was represented by Mr Fardin Nickjo, and the Respondent was represented by Mr Max Gao. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received written and oral evidence from the numerous witnesses set out below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, the parties informed the Tribunal that for the purposes of this review, and s 500(6L)(c), the 84th day is 2 December 2021. It was therefore open to the Tribunal to make a decision prior to midnight, on 2 December 2021.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(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.
The Applicant has made the representations required by s 501CA(4)(a) of the Act.
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[8]
…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…[9]
[8] [2018] FCAFC 151.
[9] 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).
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[10] I will address each of these grounds in turn.
[10] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Evidence before the Tribunal[11] establishes that the Applicant was sentenced to 22 months imprisonment with a non-parole period of 16 months, in the Parramatta Drug Court on 7 August 2020.
[11] Exhibit G1, G-Documents, G2, page 22.
As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. Indeed, so much was conceded on behalf of the Applicant. The Tribunal therefore finds on this basis that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 90
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[12] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[12] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
Relevantly, the Direction states that:[13]
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
[13] The Direction, paragraph 6.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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 measurable 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 non- citizens 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 non- citizens 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 measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)       protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the best interests of minor children in Australia;
(4)       expectations of the Australian community.
Paragraph 9 of the Directions sets out four Other Considerations which must be taken into account. These considerations are:
(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;
(ii)impact on Australian business interests
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[14]
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.
[14] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
Following the mandatory cancellation of his visa, the Applicant made a Request for Revocation on 5 February 2021[15] the Applicant provided hand-written reasons for revocation as follows:
Special circumstances my child “Carter Jack Devenport” upbringing. Ability to be committed to rehabilitate myself for a better change. The very one of the reasons I’m in jail. I understand I had to communicate by lawyers. I did not have the money to go through lawyers but now I realize legal aid could have possibly helped me and to be patient when legal process was on foot.
I will never commit any (ANY) OFFENCE AT ALL WHILE I’M IN AUSTRALIA. I will enter into any agreement with the Australian immigration department to prove my future commitment. I promise this. My family all in Australia please reconsider my deportation I can provide if at hand any additional information. Thank you!
[15] Exhibit G1, G documents, G2 at 56.
Personal Circumstances Form
In his Personal Circumstances Form[16] dated 10 February 2021, the Applicant acknowledged his New Zealand citizenship and stated that he first arrived in Australia in 1989 with his parents, one sister, and two brothers. He gave his relationship status as separated, and he nominated his son presently aged three years as his only minor child.
[16] Exhibit G1, G documents, G2 at 58-72.
The Applicant described his relationship with his son as being “very close” and said that he had “regretfully ignored the AVO to be by his side.” He said he would wait for the AVO to expire before continuing relationship with his son. He also said he would seek mediation for access to his son at the earliest time possible.
The Applicant described the likely impact of a negative decision in this review as including the loss of a role model and security, and the mental and emotional impact in the future. He expressed concern that his son might develop mental health issues that could lead him to “spiral down”.
The Applicant mentioned no other minor children impacted by the decision.
The Applicant set out family details to include his father, mother, sister, two brothers, one half-brother, and a step-mother all of whom lived in Australia. He also nominated an uncle and aunty and three cousins, as well as a further four uncles/aunties, and a further four cousins. He said his loss would play on their emotions and possibly their mental health.
The Applicant said that his son was a “driving force” for him to never reoffend again, and said he had completed HIPU, CRC, and RUSH courses to avoid further offending.

When asked at item 11 if he had previously received a warning from the Department or Minister, he replied “Never before.”
The Applicant said that in future he will use lawyers so as not to breach the AVO, and that he was a changed man, committed to doing better in the future. The AVO expired in February 2021.
The Applicant said he left school half-way through year 9 before joining the carpentry trade, and recently opened his own business.
The Applicant did not list any employment history, community contributions, or hardships that would be caused to members of the Australian community if he were to be removed from Australia.
The Applicant denied that he had any diagnosed medical or psychological conditions or that he was on any medication.
The Applicant expressed concerns that if returned to New Zealand he would not have anyone from his existing family, because they are all in Australia. He would face homelessness in New Zealand, and he planned to teach his son “good deeds” and affect his upbringing in a positive way.
Further statement of Applicant
The Applicant provided a statement via email dated 8 November 2021[17] in which he provided details regarding his life since moving to Australia in 1987 when he was five years old. He used cigarettes, “weed” and alcohol while at school following his parents’ divorce. He took a lot of time off school and was told by the school principal that he would have to repeat year nine or seek an apprenticeship. He took a sheet metal apprenticeship at the age of 15 and stated that “being only 15 ½ years old and earning money just fuelled my addictions."
[17] Exhibit A11.
The Applicant reviewed his driving history which he said was all drug and alcohol induced, and that he was hanging around with a bad crowd at the time. He said he was taking cannabis and alcohol every day around this time.
The Applicant said that after the receipt of the 2008 letter cautioning him that he might have his permanent visa revoked “I pulled my head in and woke up to myself”. He said that he remained on the right side of the law for the next six years. He said that in 2014 he reverted to cannabis and alcohol after finding his girlfriend cheating on him with his younger brother. He turned back to his old friends and forgot about the warning he had received. He described how he robbed a motorcycle accessory warehouse under the influence of cannabis and alcohol. The Applicant said that following this episode he remained clean of alcohol and cannabis and crime free for a period of three years until he was kicked out of home in 2017 when he committed larceny while on cannabis and made a false statement to a pawn shop while selling goods to buy himself some food. He blamed drugs for this offending also.
The Applicant described how he commenced his relationship with a woman, who should be referred to as “R”, and was charged with a negligent driving offence and an alcohol related driving offence in December 2017 driving a friend home. He described the birth of his son in July 2018 and how he cut the umbilical cord. He spoke in glowing terms of his pride in fatherhood.
He and R broke up in January 2019, and he described himself as a mess around this time. He used synthetic cannabis and slept in his car for a period of about a month, following which they reconciled and he ceased using synthetic cannabis.
He said they had another breakup in April 2019 and once again he was sleeping in his car and using synthetic cannabis and alcohol. He said that R drove past him, and seeing him passed out from drugs and alcohol she called the ambulance and the police. This happened repeatedly for about seven days and that’s when he believes the AVO was taken out. The Applicant said that he was never a threat to R, and only stayed close by so when she rang and wanted him, he could be there in less than five minutes. He said that on 17 April 2019 he was charged with breach of the AVO and possession of synthetic cannabis. He described an on-again off-again relationship, and that it was in consequence of her requests that he return that he was breached for the AVO.
The Applicant described completing and excelling at the three-month HIPU course and said he also completed the CRC course. He again stated that he was a model inmate who worked the whole time of his sentence. He said he was assaulted on two occasions whilst in prison and suffered injuries including a broken jaw in three spots, a broken rib, and a fractured eye socket. He said he now has a plate in his jaw and a rib that will stick out for the rest of his life. He said he has also been assaulted in Villawood, and his jaw was refractured. He had an appointment at Liverpool Hospital on 10 November 2021 to have it fixed once again. He denied ever showing any violence.
The Applicant expressed the hope that he could stay in Australia to play a role in the life of his presently three-year-old son. He said his son suffers seizures which can last up to 10 minutes and which scare him. He expressed concern about the detrimental effect on his son if he is sent back to New Zealand. He is concerned that his son will think that he has abandoned him and doesn’t love him that this could impact him as he grows older. He said it would “shatter” him personally if he was taken away from his son and sent back to New Zealand. He said that although he was born in New Zealand, all his ties are in Australia as he has his been here since he was five years old. He said he does not have one person in New Zealand to fall back on for support, and fears suffering immense depression if he is forced to return. He said “it could be the final blow that ends my very existence.” He swore he would never be on the wrong side of the law again. He committed himself to doing the right thing by the Australian government and community and taking courses such as A/a and D/a meetings and counselling to prevent any relapse in the future.
The Applicant said he has committed a lot to the community and has been striving to be a good role model for his son. He said he has worked full-time since he was 15, and opened his own business in 2019, and it was going strong until he was locked up.
Statement by Mr and Mrs Devenport
The Applicant also provided a two-page handwritten statement[18] dated 20 February 2021 signed by B.R. Devenport and U. Devenport, his father and step-mother. They explained that they moved to Australia in 1989, and that the Applicant had never returned to New Zealand and had never met any of his now living relatives, and he would have no-one to turn to in New Zealand. They expressed the view that the Applicant would love to see his son grow up and be part of his life. They had been beside him all of his life but had been “unable to reach him” because of his drug abuse. They felt sure that after his rehabilitation programs he would stay on the “straight and right side of the law”. They also said that the Applicant recognised his step-mother as his mother as his biological mother stopped caring for him 22 years ago.
[18] Exhibit G1, G Documents, G2, Attachment F1, pages 73-74.
In a separate statement also dated 20 February 2021[19] Mrs Devenport committed “100%” to helping the Applicant get back on his feet, be an asset to the Australian community, and lead him to a healthier way of living. She asked that it be considered that he has most of his family in Australia, and they would back him all the way.
[19] Exhibit G1, G Documents, G2, Attachment F2, page 75.
The Tribunal also has before it an email[20] dated 15 October 2021 from Mr and Mrs Devonport in which they asked for leniency and the chance to be a whole family and allow the Applicant to get back into his life and to connect with his son. They said they were terrified at the thought that he might be sent to New Zealand as this would split the family. They expressed the view that not being able to be in his son’s life would destroy him. They expressed the hope that the Tribunal could see what the Applicant could achieve in the future and become a better person and a valued member of the community.
[20] Exhibit A3.
The Tribunal also has before it an email[21] dated 4 November 2021 from Bruce Devenport and Ulla Devenport. They described the Applicant’s past as being “riddled with drug abuse and alcohol, also crimes such as larceny, driving offence charges, avo breaches and a break and enter charge.” They described the Applicant as “very rebellious” since his father’s divorce, and recounted that his biological mother has had nothing to do with him since he was 14 years of age. They also described the Applicant’s broken relationship with the mother of his child, the consequential AVO, his alcohol and drug related depression which led to his criminal conduct.
[21] Exhibit A10.
It appears from this email that the Applicant’s relationship with the mother of his child notwithstanding the AVO, was on and off at her whim:
She broke up with Anthony several times over the next two years, after the second breakup that’s when the AVO was placed on Anthony.
Every time there was a breakup Anthony fell back to alcohol and drugs depression which led him to commit the break and enter, larceny and false statements to porn (sic) shops.
Whenever [R] wanted Anthony back he would clean himself up from his addictions and get back to his family which she would then breach him on his AVO then normally a month later she would want him back and show him remorse, this happened several times resulting in Anthony going to gaol.
Mr and Mrs Devenport went on to say that the Applicant’s imprisonment was the best thing that’s happened to him. Since going to prison he has dealt with his addictions, completed courses and realised that a life of sobriety is what he wants. They echoed their earlier sentiments, and those of the Applicant, they said they were “terrified at the thought that he may be deported back to New Zealand as this would totally split the family not to mention him not being able to see his son’s life which would destroy him.” They expressed concern for his mental health in New Zealand where he would be without family.
The Applicant also provided an undated, unsigned letter[22] from Mr Nick Birbiles, Service and Programs Officer of Wilmington Correctional Centre. Mr Birbiles described the circumstances in which the Applicant came to Australia and said that he was now a joint partner in a refrigeration business on the Central Coast of New South Wales. Mr Birbiles had experience assisting persons seeking the revocation of cancellation of their visas, and expressed the view that it was in the best interests for the Applicant to stay in Australia. He said the Applicant had fulfilled all the obligations regarding programs whilst in custody, and realised he had done wrong and needed to change. He said the Applicant had no supports back in New Zealand.
[22] Exhibit G1, G Documents, G2, Attachment F4, page 77.
The Applicant also provided a hand-written, undated statement from Jason White[23] who said that he had known the Applicant for a number of years, and described him as a hard worker, reliable, and honest person, loving father and good friend. He said it would be a big loss to Australia if the Applicant is sent back to New Zealand.
[23] Exhibit G1, G Documents, G2, Attachment F5, page 78.
The Applicant also provided an unsigned, typed statement dated 24 August 2021[24] in which he acknowledged and accepted full responsibility for his crimes and expressed remorse and a determination to take positives from the punishments he had received, obey the law, and be an outstanding citizen of Australia for his son, family and the community. He described how he had completed courses whilst in custody to overcome his drug and alcohol addictions. He said he had been employed full-time whilst in gaol, and had been a model inmate. He said he was deeply sorry for breaching AVO orders “so many times and disrespecting the courts by continually breaching my AVO.” He said he did not remember receiving the departmental warning regarding possible visa cancellation in 2008. He said he no longer hung around with the “wrong crowd”, and had a full-time job waiting for him upon his release back into the community.
[24] Exhibit G1, G Documents, G2, Attachment H, page 83.
The Tribunal has had regard for a classified document[25] which says with reference to the Applicant that “NIL enforceable AVO is currently in place.”
[25] Exhibit G1, G Documents, G2, Attachment I, page 84.
The Applicant’s criminal history is informed by the following documents:
(a)Australian Criminal Intelligence Commission Check Results Report dated 21 January 2021;[26]
(b)Sentencing remarks of Judge Still in the Drug Court of New South Wales on 7 August 2020;[27]
(c)Sentencing remarks of Judge Dive in the Drug Court of New South Wales on 24 February 2020;[28]
(d)The Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 2 February 2021.[29]
[26] Exhibit G1, G Documents, G2, Attachment A, pages 22-32.
[27] Exhibit G1, G Documents, G2, Attachment B, pages 33-39.
[28] Exhibit G1, G Documents, G2, Attachment C, pages 40-46.
[29] Exhibit G1, G Documents, G2, Attachment D, pages 47-50.
The Tribunal has also had regard for a Formal Counselling Letter[30] dated 22 May 2008 which was sent to the Applicant by registered mail, and for which he signed an Acknowledgement of Receipt of Formal Counselling Letter[31] on 29 May 2008. This letter advised the Applicant that he had a criminal record and explained the operation of s 501 of the Act.
[30] Exhibit G1, G Documents, G2, Attachment E, pages 51-52.
[31] Ibid at page 53.
The letter stated in part:
The purpose of this letter is to warn you that any further criminal convictions or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa. I note that the consequences of visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, buys on re-entering Australia.
It would be appreciated if you would sign the attached acknowledgment and return it in the envelope provided.
The Tribunal notes from the Australian Criminal Intelligence Commission Check Results Report that the list of offences committed by the Applicant since the date of the Formal Counselling Letter extends to over eight pages[32] and covers a period of about six years.
[32] Exhibit G1, G Documents, G2, Attachment E, pages 22-30.
Prior to the hearing, the Applicant also provided an email from Sharyn Ellis[33] who said she had known the Applicant all his life, and he had always been a very loving, caring and honest person. She said he had worked hard for most of his life and all he wanted was to be a father to his son. She expressed concern that if the Applicant is sent back to New Zealand he will have no family or friends over there. She said she understood that he had a job waiting for him if and when he is released and able to remain in Australia. She expressed concern that he will fall into a depression and do something silly if sent back to New Zealand whereas in Australia he had family to keep an eye on him and a son to be part of his life.
[33] Exhibit A2.
The Applicant also provided an email from Lorraine Barlag[34] who said she had known the Applicant for 20 years, and that he would have no family support or job prospects were he deported to New Zealand. She described his parents as honest people who would support him in Australia. She referred to the Applicant’s son and said that the Applicant needed to have access to the child. She said the Applicant had a job waiting for him and she was sure he will continue to do the right thing and work hard in Australia. She said that the Applicant had no family New Zealand as he left there as a small child.
[34] Exhibit A4.
The Applicant also provided a letter dated 14 October 2021 from Mr Robert Nalder[35] of Independent Portable Buildings, who said that the Applicant had been employed at that business from the period around January 1998 until he resigned around 2002. He had returned for a short period of time “a couple of years ago” as a subcontractor. Mr Nalder described the Applicant as a “very dependable, hard-working, and punctual young man”. He said that he showed great ability and was a very valuable member of their team. He glowingly described the Applicant as “an extremely diligent & valuable member of our team”.
[35] Exhibit A12.
The Applicant also provided an email reference[36] from Mr Patrick Tummarello of Tummarello Constructions Pty Ltd who said that the Applicant was employed by that company during the period January to July 2015. He said he would definitely employ the Applicant in the future.
[36] Exhibit A13.
The Applicant also provided an email[37] dated 26 October 2021 from Mr Nathan Devenport who said that he was the younger brother of the Applicant and requested leniency so that he could remain in Australia. He said that he would like to have the Applicant back in his life, and to get to know his son. He said he had seen his parents stand by the Applicant for a long time, and that he had tried to help him himself.
[37] Exhibit A15.
The Applicant also provided a bundle of photographs of himself with his son.[38]
[38] Exhibit A17.
Hearing
The hearing took place via Microsoft Teams on Tuesday 16 and Friday 26 November 2021. The Applicant was represented by Mr Nickjoo and the Respondent by Mr Gao.
Mr Nickjoo conceded the accuracy of the history alleged against his client in the Respondent’s SFIC, and that his client does not pass the character test.[39] Mr Nickjoo submitted that his client was not violent and was not a threat to the Australian community.[40]
[39] Transcript, 16 November 2021, page 4, lines 1-2.
[40] Transcript, 16 November 2021, page 4, lines 16-17.
Evidence of the Applicant
The Applicant gave evidence that he came to Australia in 1987 and had a good relationship with his parents and siblings. The Applicant said that his parents’ divorce when he was about 14 had a very bad effect on him. He struggled without a stable family and this led him to associate with bad company. He played a lot of soccer as a child, but he had no one to take him to soccer when his parents divorced.[41]
[41] Transcript, 16 November 2021, page 5.
He said that he started working at a young age and that having extra money fuelled his addictions and this led him to offend. He said he committed no serious offences between 2008 and 2014. He focussed on work and his family life. He said he had worked full time since the age of 15.[42]
[42] Ibid.
The Applicant said that he voluntarily stayed at Odyssey House, a rehabilitation centre at Ingleburn in Minto, for two to two and a half months in 2017. He also did a course in 2014 at the Maryfields Day recovery.[43]
[43] Transcript, 16 November 2021, page 6.
The Applicant said he was a silent partner in his father’s carpentry business for eight years before starting his own business. He described the birth of his son in 2018, and the breakup with his partner in 2019. He suffered immensely from depression being away from his partner and son. He had been working full time supporting his partner and her two sons as well as their son even during the breakups.[44]
[44] Transcript, 16 November 2021, page 7.
He said that the AVO which led to his breaching offences came about after the breakup in 2019. He said he breached the AVO through messages of a non-violent nature expressing love, and he was aware that his communications were made in breach of the order but claimed that they formed part of exchanges.[45]
[45] Transcript, 16 November 2021, pages 8-9.
He referred to rehabilitation courses he had completed[46] and said that he had been clean for eighteen months and expressed an intention to attend drug and alcohol support meetings if he is permitted to remain in Australia. He said that he had never been violent in his life and had two clients waiting to give him work immediately once he is free[47] and referred to references.[48]
[46] Exhibits A5, A6.
[47] Transcript, 16 November 2021, page 11.
[48] Exhibits A12, A13.

He appeared to express genuine, deep remorse for his crimes, and serious commitment to changing his ways.
His son has medical conditions causing developmental delay and seizures[49] of up to 15 minutes duration. The Applicant said that some of his breaches arose from taking the child to medical appointments.[50]
[49] Exhibits A6, A7.
[50] Transcript, 16 November 2021, page 11.
The Applicant said that he was supporting his ex-partner and her prior children and his own son. She rang him and demanded he attend because his son was sick. She brought him to visit him in gaol in March this year. She later came back with all three boys. His son greeted him affectionately and enthusiastically during the prison visit.[51]
[51] Transcript, 16 November 2021, page 14.
The Applicant said that R is in a new relationship and has cut all ties for him and his son. He is concerned about their son’s health and welfare and does not know if he is being supported properly. He said that he will make contact through a lawyer even though there is no AVO, and will support his son in the future. He said that he could not stand being away from his son.[52]
[52] Transcript, 16 November 2021, page 13, lines 26-27.
The Applicant said that he has the support of his parents, and they will accommodate him, and take him to AA meetings and any courses he does, and will also support him in the Family Court.[53]
[53] Transcript, 16 November 2021, page 13, lines 38-45.
He expressed the view that his removal will be detrimental to his son, and he expressed fear that his son will go down the same path he took following his own parents’ divorce.[54]
[54] Transcript, 16 November 2021, page 14, lines 1-12.
Cross-Examination
Under cross-examination by Mr Gao, the Applicant did not dispute the convictions including driving offences in his Check Results Report, and he admitted using alcohol and drugs during the period of 2000-2008. He blamed his conduct on hanging around with the wrong crowd and his parents’ divorce.[55]
[55] Transcript, 16 November 2021, page 17, lines 1-11.
The Applicant acknowledged that he completed the Sober Driving Program in 2008 and was also attending Alcohol Anonymous and Narcotic Anonymous meetings in 2008 and subsequently committed another drink-driving offence in 2017.
The Applicant was referred to page 67 of the G documents, a report of a “Major Traffic Crash” on 30 October 2017 for which he was convicted on 13 December 2017.[56] This offence occurred while he was on a Red P plate and recorded a blood-alcohol reading of .0001 notwithstanding his prior completion of the Sober Driving Program.[57]
[56] Transcript, 16 November 2021, page 19, lines 5-10.
[57] Transcript, 16 November 2021, page 18, lines 25-46.
The Applicant said his relationship with R began in early 2017. She had two sons from two different prior relationships. They had several breakups over a period of a year to a year and a half. The first breakup was for a month, in early 2019, and the second breakup for about three weeks was in April 2019. He said he would not understand why some of the breakups would happen.[58] He said that the relationship fell apart because her mother and sister got involved. He maintained he only took drugs when they had a breakup.[59] He got off drugs when they reconciled. He said he believed his sleeping in the car close to her home was the basis for the AVO. He initially did not recall when it was taken out, but later agreed that it was in February 2019. He breached the AVO on 14 and 19 March 2019, by being within a 500 metre radius of her home. He was at the home of a friend who lived 360 metres away in a straight line, but more than 500 metres by road.[60]
[58] Transcript, 16 November 2021, page 23, lines 5-8.
[59] Transcript, 16 November 2021, page 22, lines 38-41.
[60] Transcript, 16 November 2021, page 25, lines 5-13.
He again breached the AVO by going to her home on 3 July 2019 because “she wanted me to come around … because we would have been back together again at the time.”[61] He confirmed that he told the police that he had breached the AVO because he thought she had dropped it.[62]
[61] Transcript, 16 November 2021, page 25, lines 25-28.
[62] Transcript, 16 November 2021, page 26, lines 26-31.
The Applicant again breached the AVO on 2 October 2019 when he attended at the premises while his son was sick. He maintained that they were actually back together at the time, and that he had given her all his money and they gone shopping for fortnightly supplies after which she decided she didn’t want him in the house anymore and he was left with nothing. He returned the next day and took the lawnmower and whippersnipper which he maintained were his property.[63] He also maintained that he was living with R for a period of five or six weeks.[64]
[63] Transcript, 16 November 2021, page 27, lines 10-20.
[64] Transcript, 16 November 2021, page 27, lines 40-45.
The last breach of the AVO attributed to the Applicant occurred on 28 May 2020 when he sent unanswered text messages to R for a period of 16 days. The Applicant said that not long before this episode, he took R and “my three sons” to Umina Beach at Woy Woy for periods of three days on two separate weekends, and everything was fine in the relationship on those occasions.[65] As this evidence was outside the two day rule, it was later agreed that the Applicant would provide to the Minister and the Tribunal, a statutory declaration exhibiting the transcript of the hearing, no later than Tuesday 23 November, and the matter would be relisted for Friday 26 of November to receive that evidence.
[65] Transcript, 16 November 2021, page 28, lines 15-20.
The Applicant acknowledged that this latest breach of the AVO occurred after he was told by Judge Dive that he must strictly abide by the terms of the order.[66] The Applicant explained this breach by saying “I believe at the time that nobody should tell a father whether he should be able to see his sons or not. And to his fiancée, and I was still led to believe that everything was fine between her and I because of the time we spent away leading up to me going in for sanctions. And it was just too hard for me to be away from my son at the time.”[67] He later said “at the time I thought it was okay because I was never violent to her physically or mentally.”[68] He agreed that he had been taking drugs at the time that he’d been sending those messages.[69]
[66] Transcript, 16 November 2021, page 29, lines 34-35.
[67] Transcript, 16 November 2021, page 29, lines 39-43.
[68] Transcript, 16 November 2021, page 30, lines 1-3.
[69] Transcript, 16 November 2021, page 30, lines 10-15.
The Applicant told the Tribunal that the last time he took drugs was 25 June 2020, the day of his arrest.[70]
[70] Transcript, 16 November 2021, page 30, lines 19-20.
The Applicant told the Tribunal that he committed numerous stealing offences in 2020 while he was under the influence of drugs and alcohol, “in the deepness of my depression… And also it was to help me survive at the time”.[71]
[71] Transcript, 16 November 2021, page 30, lines 27-30.
It was put to him that he’d been gainfully employed all the time, and he said that in the last couple of months he was not.[72] He was not employed from April 2020 after he entered the Drug Court Program, and he stole in order to survive.
[72] Transcript, 16 November 2021, page 30, lines 32-33.
The Applicant told the Tribunal that in 2016 when he was estranged from his family after being kicked out of home by his father, and was deep into drugs and alcohol, he stole a welder from his father and pawned it to supply a bit of food for himself and to get more drugs.[73]
[73] Transcript, 16 November 2021, page 30, lines 27-37.
The Applicant gave evidence that in April 2020 he had to steal in order to survive.[74]
[74] Transcript, 16 November 2021, page 32, lines 5-6.
The Applicant confirmed that on 10 October 2019 he stole a generator to fuel his drug habit.[75]
[75] Transcript, 16 November 2021, page 32, lines 10-25.
On 15 November 2019 he stole a substantial quantity of equipment from one of his father’s friends under the effects of drugs and alcohol and stole to feed his habit.[76]
[76] Exhibit R2, Respondent’s Tender Bundle, page 35; Transcript, 16 November 2021, page 32, lines 26-47.
The Applicant said that he first used cannabis around the age of 14 years. He stopped in 2008 for six years. He relapsed for about a year in 2014 and then weaned himself off for synthetic cannabis for another year and was off it for a year and for the two years he was with R until they broke up.[77]
[77] Transcript, 16 November 2021, page 33, lines 8-24.
The Applicant said he was kicked out of home by his parents in 2017 for drug and alcohol use. There were a couple of little times when he was unemployed. He was employed for 98% of the time.[78]
[78] Transcript, 16 November 2021, page 33, lines 31-36.
The Applicant also told the Tribunal that he worked as a sheet metal worker for different firms over a couple of years before joining his father’s business in 2001 when he was 18. He was a silent partner in the business for eight years. He left to expand on his carpentry skills, not because of drugs.[79]
[79] Transcript, 16 November 2021, page 33, line 43 to page 34, line 17.
The Applicant told the Tribunal that together with a friend, he opened a cool room construction company in September 2019.[80]
[80] Transcript, 16 November 2021, page 35, lines 1-8.
He booked himself into a rehabilitation facility, Odyssey House, for 2 and a half months in May 2019. He left because he was still in contact with R. She expressed difficulty without him, and he decided to check out and go to support them but she did not want him to.[81]
[81] Transcript, 16 November 2021, page 35, lines 18-40.
Mr Gao referred the Applicant to a New South Wales Department of Corrective Services memo dated 9 September 2019 which was at exhibit R2, Tender Bundle, page 137. This document recorded that the Applicant agreed to complete DV and drug interventions. The Applicant agreed that he had said that he would complete those interventions.[82]
[82] Transcript, 16 November 2021, page 37, lines 5-11.
Mr Gao then referred the Applicant to a further document from the New South Wales Department of Corrective Services which was at exhibit R2, Tender Bundle, page 170. This document was a file note dated 14 April 2020. It recorded in part, as follows:
Took responsibility for what he needs to do to re-build these relationships – stay away from drugs and alcohol, don’t take “short cuts”, manage agitation and look after mental and physical health – he was able to draw on previous learning from Odyssey House program and discussed how he would apply the tools and strategies that he had learned previously.
The Applicant agreed that the document’s finding was quite positive regarding his progress.[83]
[83] Transcript, 16 November 2021, page 37, lines 20-47.
The Applicant was then asked why it was that he continued to take drugs until June 2020 after release from Drug Court. The Applicant said that when he was released into the public from Drug Court he went back to his friend’s house which was 360 metres away from the original address from which she was excluded under the AVO. He said everything was going fine until he could not have face to face interventions after the Covid pandemic started, and he missed a couple of phone calls and relapsed.[84]
[84] Transcript, 16 November 2021, page 38, lines 1-23.
The Applicant was asked, if for some reason he was unable to have custody or visitation rights to visit his son what confidence could the Tribunal have that he would be able to stay away from drugs in Australia. The Applicant expressed confidence that HIPU and future courses he planned to do will help him.[85]
[85] Transcript, 16 November 2021, page 38, line 37 to page 39, line 8.
Evidence of Mr Bruce Devenport
Mr Devenport confirmed that he had made the statements in his name which were before the Tribunal. He told the Tribunal that the Applicant’s biological mother degraded the Applicant quite a bit and it affected him quite a lot, and he turned rebellious after that, and started using marijuana. The Applicant went through a period of eight years of abstinence when Mr Devenport saw a real difference in him. He confirmed they had worked together for a time and then his son decided to go his own way.[86]
[86] Transcript, 16 November 2021, page 42, line 27 to page 43, line 38.
Regarding the Applicant’s relationship with R, Mr Devenport said they got engaged, had a son, and started having family problems from her side and became aggressive towards him. He said a lot of his son’s prison was in consequence of AVO breaches.[87]
[87] Transcript, 16 November 2021, page 43, line 40 to page 44, line 4.
Since the Applicant’s incarceration he has done tests which have been clear, and his whole manner had changed. He had improved 100%. He is a lot more coherent now and actually listens. Mr Devenport trusts him now, and will offer him a room. His wife is assisting him with rehabilitation plans, and he wanted to continue doing rehab. He was in a position to spend time with the Applicant whenever he needed to.[88]
[88] Transcript, 16 November 2021, page 44, lines 10-35.
Mr Devenport said that the Applicant loves and misses his son. He took R’s other sons on as his own and used to take them for meals at his home and support them.[89] He said he is very worried about the lack of backup support for his son in New Zealand, and is worried he will fall back into his old ways. He would have a 100% better chance here in Australia with the backup that he is offering the Applicant.[90]
[89] Transcript, 16 November 2021, page 44, lines 37- 46.
[90] Transcript, 16 November 2021, page 45, lines 4-13.
In cross examination by Mr Gao, Mr Devenport confirmed his email address, and that his son emailed the statement to him on 4 November 2021 because he is a very poor speller, but that the statement is true. He has a brother and a sister in New Zealand, but they are not in good health and have trouble looking after themselves. He is periodically in touch with them. They have grown up children whom the Applicant has never met.[91]
[91] Transcript, 16 November 2021, page 45, lines 27 to page 46, line 5.
His son started working with him in about 2000. He spoke positively of his son’s work performance. He was aware that he had alcohol and cannabis addictions which did not interfere with his work. He lived with them at the time, before moving out around 2010. He came back a few times for short periods of residence. He most recently lived with them for around three years between 2012 and 2015.[92]
[92] Transcript, 16 November 2021, page 46, line 20 to page 47, line 20.
He does not tolerate drug use at his home, and he was aware that his son used drugs while living at home. He tried everything to get his son off drugs but failed, and he had kicked him out of two properties because of his stealing and drug use. He does not think his son will use drugs again. Mr Devenport said he would not be able to provide financial support to the Applicant if he is removed to New Zealand. He was aware that his son was employed on and off while he lived with them.[93]
[93] Transcript, 16 November 2021, page 47, line 35 to page 48, line 32.
In re-examination Mr Devenport said he believed the Applicant and had concerns for his son’s health. He was a very emotional boy, and deportation would “affect him quite badly.”[94]
[94] Transcript, 16 November 2021, page 49, line 24.
Evidence of Mrs Devenport
Mrs Devenport confirmed the statement she had provided,[95] and that she supported her husband in his support of the Applicant. She is an ex-nurse and has been looking into rehabilitation for him but can’t make an appointment for him until he is released. He has completely changed his attitude since his imprisonment, and she has no issue with him living at their residence. She has time to support him in getting to rehabilitation, and she is also concerned for his safety if he goes back to New Zealand. His deportation would break her heart.[96]
[95] Exhibit A10.
[96] Transcript, 16 November 2021, page 50, line 15 to page 51, line 3.
She told Mr Gao in cross-examination that she had married Mr Devenport in 1998. She recalled that in 2016 the Applicant was living with them. She was referred to an incident which she recalled, when they had called the police to get help for the Applicant. She said she was not the person who told police that the Applicant had been on drugs every day for nineteen years[97] but recalled they had “quite a lot of problems to get him try to straighten him out”.[98]
[97] Transcript, 16 November 2021, page 51, line 21 to page 52, line 23.
[98] Transcript, 16 November 2021, page 52, lines 28-30.
She confirmed that in 2019 she was contacted by NSW Corrective Services and had told them that she did not want the Applicant to live with them as he had been giving them grief for the last twenty years.[99]
[99] Transcript, 16 November 2021, page 52, line 45 to page 53, line 5.
She said that if he relapsed, she would try her best to ensure he got the best possible treatment for him, and they would not give up on him. The Applicant had wanted her to seek out rehabilitation opportunities.[100]
[100] Transcript, 16 November 2021, page 53, lines 15-25.
Mr Nickjoo had no re-examination of the witness.
Re-examination of the Applicant
Mr Nickjoo then re-examined the Applicant, who accepted that he had breached the terms of the AVO,[101] after R called him and told him his son was sick,[102] and on another occasion when he was going shopping with her.[103]
[101] Transcript, 16 November 2021, page 56, line 19.
[102] Transcript, 16 November 2021, page 56, line 25.
[103] Transcript, 16 November 2021, page 57, lines 7-8.
The Applicant told the Tribunal that he definitely would not be stealing again because he learned his lesson.[104] He emphasised how the HIPU course had helped him to understand that he had to comply with an AVO even when there was no violence involved.[105]
[104] Transcript, 16 November 2021, page 57, line 13.
[105] Transcript, 16 November 2021, page 57, lines 15-19.
Mr Nickjoo referred the Applicant to his previous broken promises, on page 130 and 170 of the tender bundle, about committing to rehabilitation or staying away from drinking or drug issues. The Tribunal notes these episodes occurred on 21 August 2019, 9 September 2019, and on 14 April 2020. Asked what he meant by his comment that the stakes were high and he had too much to lose, the Applicant said that he stood to lose connection with his son, to be a father figure, and a role model. He also stood to lose his family connections.[106]
[106] Transcript, 16 November 2021, page 57, lines 38-47.
Following the conclusion of re-examination, the Tribunal put to the Applicant that it was a little unclear as to how much contact he had with his son since the initial AVO was issued, and he replied “I’ve had a lot of contact with my son”.[107] when asked again by the Tribunal, how many nights would he have stayed with him since that period he replied “I would say 75% of the AVO that I wasn’t incarcerated for was – there wasn’t much that I missed out on, besides being incarcerated.”[108] he then added “But the time that I wasn’t incarcerated, I spent at least 75, 80% of my time with him still, after work hours.”[109] He had seen him twice since he was incarcerated on 25 June 2020.[110]
[107] Transcript, 16 November 2021, page 58, line 26.
[108] Transcript, 16 November 2021, page 58, lines 28-32.
[109] Transcript, 16 November 2021, page 58, lines 36-38.
[110] Transcript, 16 November 2021, page 58, line 42.
Mr Gao confirmed to the Tribunal that the Minister did not contend that the Applicant engaged in any physical violence towards R or any of the children.[111]
[111] Transcript, 16 November 2021, page 60, lines 1-2.
So as to enable consideration of the evidence of the Applicant which fell outside the two day rule, the Tribunal issued a direction that a statutory declaration be prepared and delivered to the Tribunal and the Minister on or before Thursday, 23^rd November, and the case be adjourned to 26 November 2021 to receive that statutory declaration formally into evidence.
Closing submissions

In closing submissions, Mr Nickjoo referred the Tribunal to a Federal Court authority which required the Tribunal to have regard for the devastating consequences which might flow from this decision. He reminded the Tribunal of its obligation to evaluate factors for and against revocation. He referred to the fact that the Applicant had lived in Australia for 32 years, had a troubled childhood, and his use of alcohol and drugs to mitigate his pain. He referred the Tribunal to the remarks of His Honour Judge Dive in February 2020 to the effect that he accepted the break, enter, stealing offences were below mid-range of objective seriousness. He referred to the Applicant’s remorse. He submitted that His Honour saw the Applicant was not a violent person and wanted to give him another chance and did so in the form of an 18-month suspended sentence. He submitted this Tribunal should be persuaded by His Honour and give the Applicant another chance.
He submitted that the fact that the Applicant received a warning in 2008 was against him, but he said that the Applicant was naïve at the time. He submitted the Applicant’s commitment to rehabilitation could be seen from programs he had done in custody and detention.
He submitted that the Applicant had stayed out of trouble for a long time, and that when he was in a good relationship he was staying clean, working full-time, paying his taxes and looking after his family and children.
He submitted the Applicant wasn’t much risk to the Australian community in terms of future reoffending because he now knows the consequences of going down that path.
Mr Nickjoo nevertheless conceded that the first primary consideration was against the Applicant, but the weight was a matter for the Tribunal.
Regarding family violence, Mr Nickjoo submitted there was no violence, and his breaches of the AVO shouldn’t weigh much against him.
Regarding the Applicant’s credibility, he submitted that the Applicant answered questions clearly and honestly.
Regarding the best interest of the Applicant’s son, he referred to the son’s medical condition, and how the Applicant had supported both his own son and R’s sons from prior relationships.
He referred to the fatherly role the Applicant had played in respect of his son and the fact that the child’s mother had taken him to visit on two occasions. He submitted that the effect of the Applicant’s removal on the son should significantly favour the revocation of his visa cancellation and outweigh other considerations.
He submitted that the expectations of the Australian community were against the Applicant, but it was open to the Tribunal to allocate a lower weight to this.
Regarding impediments to the Applicant’s return to New Zealand, he reminded the Tribunal that the Applicant left New Zealand at the age of five years and has lived in Australia for 34 years continuously. He said the Applicant doesn’t know any other place than Australia, and has contributed positively by working, paying taxes, and supporting his family. The Applicant nevertheless doesn’t know anyone in New Zealand and doesn’t know where to go in New Zealand. He said there were concerns that the Applicant would be homeless on the street in New Zealand.
He said rehabilitation was mainly about available support or programs, and the love and support from someone who cares about the person. In Australia the Applicant has the support of his father, step-mother, and brother. He said in New Zealand, the Applicant’s life and safety would be at stake.
In his closing submissions, Mr Gao said there was no issue about the Applicant’s inability to pass the character test. He submitted that the Applicant had been given numerous chances to show that he had been rehabilitated, and had failed to do so. He submitted that the Tribunal could not look behind the reasons as to why the AVO was issued. He referred the Tribunal to documents which showed that the Applicant had repeatedly attended at the victim’s residence causing her to feel threatened and intimidated.
Mr Gao submitted that it was necessary to treat the Applicant’s evidence with a degree of caution, because he had previously misled the authorities. He referred to an instance on 29 July 2019 when the Applicant had lied to the New South Wales Corrective Services about the existence of a brother named Andrew, and the place where he would be staying. This resulted in fruitless attempts to contact him. He also pointed to a number of offences involving dishonesty.[112]
[112] Transcript, 16 November 2021, page 69, lines 19-40.
Mr Gao accepted that the Applicant had expressed remorse and contrition, and has showed a degree of insight into his criminal behaviours and understood the need to engage professional help. However, he submitted that the Tribunal should treat that evidence with a degree of caution as the Applicant had previously expressed a willingness to engage in rehabilitation programs on 17 May 2019, 28 May 2019, 15 August 2019, and 21 August 2019. He submitted that despite the positive steps the Applicant had taken, he was still using drugs at the time of his arrest in June 2020. Mr Gao submitted:
So despite he learnt all of these techniques to help him stay clean, the evidence suggests that he couldn’t, when he was in the community. In my submission, that expression of remorse that he has displayed today needs to be viewed in that light.
Mr Gao submitted that the Applicant’s explanation of his drink-driving offence, i.e., that he was required to take his friend to his house because his friends mother was ill should be viewed as not credible. Alternatively, if the Tribunal did accept the Applicant’s evidence, it was clear that he had at that time completed a sober driver program prior to that episode and could have been expected to understand that while he was on a provisional license should not be driving under the influence of alcohol. He said the Applicant had not offered this explanation to the police, and the Applicant was trying to put himself in a more favourable light by providing that evidence.
Mr Gao also submitted that the Tribunal should consider the Applicant’s evidence that in New Zealand, separated from his son, he would spiral into depression, anxiety, and likely resort to drug and alcohol abuse once again. He submitted it was unclear any legal process to get custody or visitation rights to his son, would be successful. He said it was open to the Tribunal to infer that if he remained in Australia and was unsuccessful in gaining custody or access to his son, it was equally plausible that he would resort to substance abuse. He said the Applicant was not able to stay away from drugs or alcohol if there are certain stresses in his life.
Mr Gao submitted that life is not stress-free, and if stresses resurface in the Applicant’s life it is reasonable to expect that he will again resort to drug and alcohol abuses.
Mr Gao submitted that the Applicant’s criminal history is lengthy, and he has sporadically committed numerous driving offences, drug offences, larceny offences, breaches of AVOs, and viewed cumulatively there was clearly an escalation in the seriousness of his offending. Given the frequency of his offending this showed the offences the Applicant committed were serious.
Mr Gao referred the Tribunal to the cancellation warning letter of 22 May 2008 which was relevant under paragraph 8.1.1(1)(g).
Moreover, the fact the Applicant was sentenced to over 22 months in prison reflected the seriousness of his offence.
Mr Gao submitted that the Applicant has been using drugs for an extended period of time but had been unable to address his substance abuse addiction issues. He submitted that the Tribunal should find that he will resort to drug and alcohol again and in consequence there is a real likelihood that he will commit further offences of a similar kind. This was particularly relevant because the Applicant had previously had help and support from his parents. Moreover, his most recent offending had been committed after his son’s birth, and the emphasis that the son was a protective factor was overstated.
Mr Gao referred the Tribunal to remarks of Judge Still where his honour commented that the Applicant “celebrated with alcohol and synthetic cannabis immediately upon his release.”[113]
[113] Exhibit G1, G Documents, G2, Attachment B, page 37.
Mr Gao referred the Tribunal to a New South Wales Department of Corrective Services curfew check report at page 152 of the Tender Bundle[114] which was a record of residential contacts by the Blacktown Drug Court Team on 25 February 2020 and 26 February 2020 wherein it was recorded “Anthony stated no drug use, [but] he did admit to “having one drink” of bourbon when he saw the breathalyser. CCO reminded him of his Phase 1 conditions and Anthony apologised stating that he won’t drink any more.” The Applicant also admitted using synthetic cannabis at 4 AM on 26 February 2020. Mr Gao pointed out that the Applicant had only been released on conditional liberty on 24 February 2020, and this was why the judge said he got off to a terrible start. The Applicant also failed to sign up to a drug and alcohol rehabilitation program known as Way Back. Mr Gao relied on these episodes to submit that there was a real risk that the Applicant will commit further similar offences such as drink-driving, larceny, and possession of drugs. He further submitted these could have potentially commercial impact on other members of the Australian community.[115]
[114] Exhibit R2.
[115] Transcript, 16 November 2021, page 74, lines 25-46.
Regarding the Applicant’s breaches of the AVO, Mr Gao submitted it was the Applicant’s sworn evidence that he was told by the judge to abide by the AVO, and notwithstanding this he thought his desire to see his son was much greater than the law of the land. Mr Gao submitted it was likely that he would use similar reasoning should he enter into any future relationships.[116] Mr Gao submitted that the first primary consideration weighs heavily against revocation of the cancellation of the visa.
[116] Transcript, 16 November 2021, page 75, lines 1-8.
Mr Gao took the Tribunal to the definition of family violence in direction 90 and emphasised the non-exhaustive broad and inclusive nature of the definition “violent, threatening or other behaviour”. He submitted that the Applicant “had repeatedly breached the AVO on at least five occasions,” and pointed to evidence that this “had caused [R] to be in a state of fear”.[117] Mr Gao relied upon the definition of family violence, and the reference to “stalking” found in paragraph 4(1)(c).[118] He also referred to contacts including the excessive number of text messages and phone calls the Applicant made during the period 28 May to 20 June 2020.[119]
[117] Transcript, 16 November 2021, page 75, lines 26-33.
[118] Transcript, 16 November 2021, page 75, line 45 to page 76, line 1.
[119] Transcript, 16 November 2021, page 76, lines 30-46.
Mr Gao confirmed to the Tribunal that he was relying essentially on conduct after the AVO was issued as opposed to the AVO itself.[120] He also referred the Tribunal to an episode where R was “moving out of the address due to the issues past and present with the accused”[121] as well as another instance where she moved to a separate location due to fearing for her safety.[122]
[120] Transcript, 16 November 2021, page 77, lines 6-10.
[121] Transcript, 16 November 2021, page 77, lines 27-28.
[122] Transcript, 16 November 2021, page 77, lines 36-37.
Mr Gao said that the issue of family violence whilst relevant, did not weigh significantly because it was at “the lower end of the scale of seriousness, not to say the domestic violence is not serious.”[123]
[123] Transcript, 16 November 2021, page 78, lines 36-38.
Regarding the best interests of minor children in Australia as affected by the decision, Mr Gao said there was a question about how many children in Australia the Applicant was responsible to. He accepted that the Applicant was responsible for his biological son, and that he had some connection with R’s other sons, and that she was now in another relationship about which there was no evidence. These two children should attract different weight from that given to the Applicant’s biological child. He also accepted that it is quite important for the Applicant to be involved in his son’s life, and that it would be in that child’s best interests for the Applicant to remain in Australia. He further accepted that this consideration weighed in favour of revocation of the visa cancellation decision.[124]
[124] Transcript, 16 November 2021, page 79, lines 2-21.
Mr Gao referred to the submission made in Mr Nickjoo’s Statement of Facts, Issues and Contentions at paragraphs 32–34 to the effect that the physical separation of the Applicant from his son was in breach of articles 3, 6, 19, 27 and 29 of the United Nations Convention on the Rights of the Child, and would have negative impact upon the child’s mental and physical well-being which put at risk his survival and development in life.
Mr Gao referred to Article 9.4 of the Convention and read it into the record as follows:
Where there is separation of a child from their parents results from any action initiated by a State Party, such as the detention, imprisonment, exile, deportation or death of one or both parents of the child, the State Party shall, upon request, provide the parents of the child or, if appropriate, another member of the family with the essential information concerning the whereabouts of the absent members of the family unless the provision of information will be detrimental to the wellbeing of the child et cetera.
He submitted that it was expressly recognised under the UN Convention of the Rights of the Child that a person could be removed from the contracting State Party, such as Australia to the other State without a breach of the UN Convention.[125]
[125] Transcript, 16 November 2021, page 79, lines 40-45.
Regarding the expectation of the Australian community, Mr Gao submitted that given the numerous convictions in the criminal conduct of the Applicant, the Australian community expected his visa to be cancelled. He said the Applicant had not taken up the second chances given to him by the Australian community.[126]
[126] Transcript, 16 November 2021, page 80, lines 1-8.
Mr Gao submitted that there were no non-refoulement obligations raised in this matter. He submitted that weight could be given to impediments if removed from Australia because of the Applicant’s age when he arrived, and the uninterrupted period during which he has lived in Australia. Mr Gao accepted that the New Zealand community and society would feel alien to him, and that he may encounter difficulties. He submitted this consideration weighed in favour of revocation, and that the Applicant would need some time to find his feet again in New Zealand. He could make enquiries about his father’s relatives in New Zealand. The New Zealand social welfare programs were similar to those in Australia, and he would not be denied any medical or health services he needed to access. The weight which should be given to this consideration was reduced by the availability of services to the Applicant in New Zealand.[127]
[127] Transcript, 16 November 2021, pages 80-81.
The Applicant’s strength and ties and connection to Australia weighed in favour of revocation because his parents, step-mother and mother are in Australia as are his siblings and son. It was accepted that he has “a very deep connection to Australia”, and there were letters of support from members of his family and those who attested to his skills in previous employment.[128]
[128] Transcript, 16 November 2021, page 81, lines 15-31.
Mr Gao submitted that this was a difficult case because there were factors for, and factors against revocation. The evidence before the Tribunal was to the effect that if the Applicant is able to stay clean, it is likely that he will not commit any further offences in the future. However, Mr Gao also submitted there was a real risk of the Applicant committing further offences, such that the primary considerations of the protection of the Australian community, the expectations of the Australian community, and the family violence outweighed the best interests of the children, the impediments if removed, as well as the strength, nature and ties to the Australian community.[129]
[129] Transcript, 16 November 2021, page 82, lines 10-20.
Following Mr Gao’s closing submissions, Mr Nickjoo submitted that the family violence consideration should not be given any weight. He referred to page 45 of the Respondent’s Tender Bundle,[130] and the delegate’s finding at page 16 of the G-documents at paragraph 54[131] that “the available evidence is insufficient to establish that Mr Devonport has engaged in conduct and continues family violence, as defined in the direction.”[132] He submitted that the Tribunal should find that there had been no domestic violence.
[130] Exhibit R2, Respondent’s Tender Bundle.
[131] Exhibit G1, G-Documents, G2.
[132] Transcript, 16 November 2021, page 84, lines 40-43.
Mr Nickjoo made submissions in support of the Applicant’s credibility, saying he was “fighting for not losing everything.” He submitted that this was totally different from past circumstances.
CONSIDERATION
In addition to the foregoing evidence, the Tribunal has had regard for the sentencing remarks of Judge Dive[133] on 24 February 2020. On that occasion, the Applicant was dealt with for 20 matters. These included breaches of Community Correction Orders which had been imposed in respect of four different matters of contravening an apprehended violence order. Two of the breaches arose on different days in consequence of the Applicant being within the 500 metre exclusion zone from the protected person’s address. The other two breaches occurred on the same day and involved physical attendance at the home of the protected person.
[133] Exhibit G1, G-Documents, G2, Attachment C, pages 40-46.
There were a further two matters of contravening the AVO while he was on a Community Corrections Order, and an offence of making a false statement to a pawnbroker because he had pawned a whippersnipper and a mower “which he accepts are not his to pawn.”[134] The AVO breaches occurred at a time when the protected person was not at home. He had gone into the backyard and left some food items there. His Honour observed:
Apprehended violence orders are of little point unless they are strictly complied with and strictly enforced. So, whilst this stream of offences might seem rather minor, it is extremely important that they are strictly enforced by the courts when they are breached.
[134] Ibid at page 41.
His honour also dealt with the Applicant for what he described as “a long list of matters” the most significant of which was a matter of break, enter, and steal. This offence occurred on a rural property and included the theft of a large quantity of equipment and a significant list of tools in respect of which the Applicant subsequently made false, misleading statements to pawnbrokers. The Applicant was also dealt with in respect of an offence of larceny involving theft of items from two separate motor vehicles from the same victim.
When the Applicant was intercepted by police, he was smoking cannabis and had a clear resealable bag containing it which he threw from the vehicle. A search of his vehicle disclosed two credit cards which belonged to others. Another offence involved the theft of a generator which was in his possession when he was intercepted by police.
His Honour reviewed in some detail the Applicant’s criminal history which began in 2006 with the drink-driving offence. It also involved a drive in a dangerous manner charge of the second drink-driving offence for which he was given periodic detention, but he breached that order. There was a further high range drink-driving offence. He had also been dealt with for driving whilst disqualified.

The Applicant’s father and step-mother have, in evidence before the Tribunal, nevertheless offered to accommodate the Applicant if he is allowed to remain in Australia, and give him 100 percent support by way of accommodation and sourcing appropriate counselling etc. Whilst the Tribunal accepts the credibility of these witnesses, and the sincerity of their desire and determination to support the Applicant, the Applicant’s troubled and rebellious history, regular relapses into drug and alcohol abuse, strong history of non-engagement with the NSW Department of Corrective Services, and his repeated expulsions from the home in consequence of his past drug use, do not lead the Tribunal to conclude that this will be a safe long term proposition to prevent the Applicant reverting to drug and alcohol abuse.
Mr and Mrs Davenport have tried hard over many years to help the Applicant reform, and the evidence is not sufficient to persuade this Tribunal that any future efforts on their part – through no fault of their own – will be any more successful than their past efforts.
The Applicant does have the prospect of employment if allowed to remain, or of resurrecting his role in his own business. His capacity to undertake either task successfully for any period of time is a matter of some uncertainty given his past performance. Having full time work and his own business has not been enough to keep him away from drugs and crime in the past, and there is little reason to believe that these factors would do so in the future.
The Tribunal respectfully adopts the following extract from the sentencing remarks of Judge Still, save with the exception that the Tribunal views those words applicable to the totality of the evidence before it rather than the Applicant’s participation in the Drug Court Program:
I do not regard his participation in the Drug Court Program as establishing a realistic prospect of rehabilitation, notwithstanding what I am told today …
The Tribunal considers there to be a very real risk that the Applicant will commit further offences or other serious conduct in the future, whether or not he is subject to supervision.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect 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; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or 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.
There is no evidence before the Tribunal as to the conduct or allegations which founded the initial AVO, however there is no suggestion that it involved actual physical violence towards either the Applicant’s child or former partner. The breaches stem from unwelcome visits and phone/text contact. Against this, the Applicant contended that he took his former partner and children away for long weekends on two occasions, and also took her shopping, and took their son (who suffers seizures) to doctor’s appointments. In the absence of corroboration, and having regard for the Applicant’s numerous convictions for making false or misleading statements, and his lie to the NSW Department of Corrective Services, the Tribunal does not give this evidence great weight.
To the extent that there is evidence pertaining to his AVO breaches, as was observed by Judge Dive, the evidence is “complicated” and “this stream of offences might seem rather minor.”[173] As was observed by Judge Still regarding the Applicant’s communications with his former partner “I accept that they were supposed to be protestations of love, but they were clearly unwelcome.” His Honour assessed these offences as “just above the midpoint of objective seriousness”.[174]
[173] Exhibit G1, G Documents, G2, page 41.
[174] Exhibit G1, G Documents, G2, page 35.
AVOs are Court orders, and for all of the reasons set out above, the repeated breaches of those orders constituting crimes are in themselves crimes involving family violence in the context of Direction 90 and must be regarded seriously.
For these reasons, the Tribunal gives Primary Consideration 2 weighs against revocation of the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
It is first necessary to identify the children actually or possibly relevant to this proceeding.
The Applicant has a biological son with his former partner. This boy resides with his mother and her two sons from prior relationships and her current partner. Although the mother took the son to see his father whilst in prison once by himself and once in company with the other two boys, the Applicant gave passionate evidence that he wished to remain in Australia and play a positive role in his son’s life. His former partner has re-partnered and “cut all ties” between the Applicant and his son. The Applicant gave evidence that it will be necessary for him to seek access to his son and reinstate his son’s surname via a Family Court application. The Applicant expressed concerns about his son’s health and welfare, and for his mental health if the Applicant is deported, and the Tribunal recognises those concerns.
For the reasons submitted by the Respondent, the Tribunal rejects the submission that the Applicant’s deportation would contravene the UN Convention on the Rights of the Child.
The outcome of the Applicant’s anticipated Family Court proceedings is impossible for this Tribunal to predict.
The Tribunal accepts that it is very much in the best interests of the Applicant’s son that he should remain in Australia, and have such lawful contact with him as he may be allowed, and play a positive role in his life to the extent that he is able. The Tribunal gives weight in favour of revocation of the mandatory cancellation of the Applicant’s visa to this consideration in so far as the Applicant’s biological son is concerned.
The Tribunal also accepts that the Applicant has played some role in the lives of his former partner’s other two sons for a period of time, and there is reason to believe that some bonding may have occurred. The Applicant’s future intentions regarding contact and involvement with these two boys is less clear to the Tribunal, but it appears to be unlikely that this will be facilitated by his former partner.
The Tribunal nevertheless accepts that it is in their best interests that the Applicant remain in Australia, and have some contact with them to the extent they wish, and this consideration also weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa but to a lesser extent than it does in respect of his biological son.
Conclusion: Primary Consideration 3
The best interests of the children mentioned above weighs in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a 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 are 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)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(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, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[175]
[175] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 4
The Applicant in this case has committed many serious offences at a mature age. In doing so, he has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is an unacceptable risk that he will do so again. The Tribunal accepts that his record of criminal and other serious conduct is such that the Australian community would expect that his visa remain cancelled.
Conclusion: Primary Consideration 4
Accordingly, Primary Consideration 4 weighs against revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 39-year-old man, and there is no medical evidence that he suffers any health issues. There do not appear to be any significant language or cultural barriers to his return to New Zealand. Neither does there appear to be any impediment to his engagement of social, medical and economic support available to other citizens in New Zealand.
The Tribunal accepts that the Applicant has lived in Australia since he was approximately six years of age, and has never departed these shores. The Tribunal accepts the evidence that the Applicant does not know his relatives in New Zealand, and that in relocating there he will be isolated from loved ones and entering unfamiliar territory. This will undoubtedly present a great challenge for him, particularly as he will be isolated from his son, family, and lifelong associates.
The Applicant nevertheless has a better work history than most people who find themselves in his situation, and his trade skills should be readily transportable to New Zealand.
There is no reason to believe that the Applicant will not be able to stay in touch with his parents, siblings and friends in Australia by the Internet. It is unclear whether R will facilitate internet contact between the Applicant and his son or her other children, and it is quite possible she will frustrate it.
This Other Consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 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.
There is no information available about the victims of the Applicant’s criminal behaviour, and it is therefore not relevant to this review and the Tribunal gives this Other Consideration neutral weight.
(d) Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors:
·the strength, nature and duration of ties to Australia; and
·the impact on Australian business interests
The Tribunal accepts that the Applicant has been living in Australia for 32 years. His son who is an Australian citizen lives here, as do his father, mother, step-mother, two brothers, one sister, one half-brother, one uncle, one aunt, three cousins, and four nieces and nephews. He has some work history, and the Tribunal is told he has operated his own business and has contributed to the Australian community. It is clear that he has the support of friends, family, and fellow workers, and has employment waiting for him if he is allowed to remain in Australia.
The evidence shows that the Applicant’s visa was not cancelled until about 12 years after he received his letter from the Department. A delay of this length may be seen as demonstrating “a higher level of tolerance” in terms of paragraph 5.2(4) of the Direction, and the decision not to revoke the cancellation may be seen as an exhaustion of that tolerance.

There is no evidence before the Tribunal that the Applicant’s deportation will impact on Australian business interests.
This Other Consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2, and 4, with each weighing in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral weight;
(b)extent of impediments if removed: weighs in favour of revocation;
(c)impact on victims: neutral weight; and
(d)links to the Australian community: weighs in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration 1 weighs very heavily in favour of non-revocation;
·Primary Consideration 2 weighs in favour of non-revocation;
·Primary Consideration 3 weighs in favour of revocation;
·Primary Consideration 4 weighs in favour of non-revocation; and
·To the extent that Primary Consideration 3 and Other Considerations (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1, 2 and 4.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 296 (two hundred and ninety-six) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.............................[SGD].................................
Associate
Dated: 6 December 2021

Date(s) of hearing: 16 & 26 November 2021

Solicitors for the Applicant: Nikjoo Lawyers

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE A

Exhibit Number Description Date of Document Party Filing Date

G1
Section 501 G Documents (G1 – G2, pages numbered 1 – 117) R
30 SEP 21

R1
Respondent’s Statement of Facts, Issues and Contentions 8 NOV 21 R 8 NOV 21

R2
Respondent’s Tender Bundle (pages 1 – 241) R 8 NOV 21

A1
Applicant’s Statement of Facts, Issues and Contentions 22 OCT 21 A 22 OCT 21

A2
Email from Sharyn Ellis 10 OCT 21 A 22 OCT 21

A3
Email from Bruce Devenport 14 OCT 21 A 22 OCT 21

A4
Email from Lorraine Angel 13 OCT 21 A 22 OCT 21

A5
Bundle of certificates from NSW to Applicant OCT 20 A 22 OCT 21

A6
Photograph of report by Luke St heaps, BSc(Biomed), MSc(Med) 10 FEB 21 A 22 OCT 21

A7
Laverty Pathology Report - A 22 OCT 21

A8 Article Leah East et al. ‘Father absence and adolescent development: a review of the literature’ (2006) 10(4) Journal of Child Health Care 283 - A 22 OCT 21

A9 Article E Flouri et al, ‘The cross-lagged relationship between father absence and child problem behaviour in the early years’ (2015) 41(6) Child: Care, Health and Development 1090 - A 22 OCT 21

A10
Email from Bruce and Ulla Devenport 4 NOV 21 A 11 NOV 21

A11
Email from Anthony Devenport 8 NOV 21 A 11 NOV 21

A12
Letter from Robert Nalder (Independent Portable Buildings) 14 OCT 21 A 11 NOV 21

A13
Email from Patrick Tummarello 3 NOV 21 A 11 NOV 21

A14
Email attaching screenshot of google maps JPEG 8 NOV 21 A 11 NOV 21

A15
Email from Nathan Devenport 25 OCT 21 A 11 NOV 21

A16
Email from U Devenport subject line “Fees and Rebates – Psychwest Psychology Practice – Sydney” 8 NOV 21 A 11 NOV 21

A17 Emailed photographs of man with children - A 11 NOV 21

A18
Statutory declaration of Mr Nikjoo exhibiting the transcript of proceedings of 16 November 2021 19 NOV 21 A 19 NOV 21

[2021] AATA 4508

2 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Date(s) of hearing:	16 & 26 November 2021
Solicitors for the Applicant:	Nikjoo Lawyers
Solicitors for the Respondent:	Australian Government Solicitor

Exhibit Number		Description	Date of Document		Party			Filing Date
G1		Section 501 G Documents (G1 – G2, pages numbered 1 – 117)	R			30 SEP 21
R1		Respondent’s Statement of Facts, Issues and Contentions	8 NOV 21		R			8 NOV 21
R2		Respondent’s Tender Bundle (pages 1 – 241)	R			8 NOV 21
A1		Applicant’s Statement of Facts, Issues and Contentions	22 OCT 21		A			22 OCT 21
A2	Email from Sharyn Ellis			10 OCT 21		A	22 OCT 21
A3	Email from Bruce Devenport			14 OCT 21		A	22 OCT 21
A4	Email from Lorraine Angel			13 OCT 21		A	22 OCT 21
A5	Bundle of certificates from NSW to Applicant			OCT 20		A	22 OCT 21
A6	Photograph of report by Luke St heaps, BSc(Biomed), MSc(Med)			10 FEB 21		A	22 OCT 21
A7	Laverty Pathology Report			-		A	22 OCT 21
A8	Article Leah East et al. ‘Father absence and adolescent development: a review of the literature’ (2006) 10(4) Journal of Child Health Care 283			-		A	22 OCT 21
A9	Article E Flouri et al, ‘The cross-lagged relationship between father absence and child problem behaviour in the early years’ (2015) 41(6) Child: Care, Health and Development 1090			-		A	22 OCT 21
A10	Email from Bruce and Ulla Devenport			4 NOV 21		A	11 NOV 21
A11	Email from Anthony Devenport			8 NOV 21		A	11 NOV 21
A12	Letter from Robert Nalder (Independent Portable Buildings)			14 OCT 21		A	11 NOV 21
A13	Email from Patrick Tummarello			3 NOV 21		A	11 NOV 21
A14	Email attaching screenshot of google maps JPEG			8 NOV 21		A	11 NOV 21
A15	Email from Nathan Devenport			25 OCT 21		A	11 NOV 21
A16	Email from U Devenport subject line “Fees and Rebates – Psychwest Psychology Practice – Sydney”			8 NOV 21		A	11 NOV 21
A17	Emailed photographs of man with children			-		A	11 NOV 21
A18	Statutory declaration of Mr Nikjoo exhibiting the transcript of proceedings of 16 November 2021			19 NOV 21		A	19 NOV 21