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

Dilworth and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3570 (5 October 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2021/4878

GENERAL DIVISION )
Re: Caleb Dilworth
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DIRECTION
TRIBUNAL:  Member R Maguire
DATE OF CORRIGENDUM:         7 October 2021
PLACE:  Brisbane
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision made on 5 October 2021 as follows:
1. On pages 1 to 86, replace the inaccurate page number total with the correct page number total of “86”.

.............................[SGD].......................

Member R Maguire

Division:GENERAL DIVISION
File Number: 2021/4878
Re:Caleb Dilworth
APPLICANT

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

DECISION
Tribunal:Member R Maguire
Date of Decision: 5 October 2021
Date of Written Reasons 6 October 2021
Place:Brisbane

The decision under review is affirmed.
............[SGD]................................
Member R Maguire
Catchwords
MIGRATION – non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – consideration of Ministerial Direction No 90 – history of drug offences – family violence – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296
Other Materials
Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
United Nations Convention on the Rights of the Child, signed 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990)
Index
Decision
REASONS FOR DECISION
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 90
Primary Consideration 1 – Protection of the Australian Community
Primary Consideration 2 – Family Violence Committed by the Non-Citizen
Primary Consideration 3 - Best Interests of Minor Children in Australia
Primary Consideration 4 – Expectations of the Australian Community
Other Considerations

EVIDENCE BEFORE THE TRIBUNAL
Evidence from the Applicant
Reference from Mr Alton Paul-Utiera of PT Wall Installation Pty Ltd
Reference from Mr Nathan El-Khoury of Skyscrape Construction
Reference from Ms Angeline Garner
Statement of Ryan Browne
Statement of D
Statement of KL
Statement of Francis Thomas Dilworth
Statement of Shari Brown
Statement of Mrs Amra Alic
Statement of Alisha Higgins
Statement of Christopher Chambers
Statement of Gavin Luke Browne
Statement of Louise Frith
Statement of Mark Benjamin Ashley Booth
Statement of Robyn Clements
Statement of Michael Berkett
Statement of Jeremy Fortes
Applicant’s Further Evidence
Further Statement of D

Evidence at hearing
Evidence of the Applicant
Evidence of Michael Berkett
Evidence of Mark Booth
Evidence of Francis Dilworth
Evidence of Alton Paul-Utiera
Evidence of Louise Frith
Offending History

Primary Considerations
Primary Consideration 1 – Protection of the Australian Community
8.1.1 Nature and seriousness of the conduct to date
8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Conclusion: Primary Consideration 1

Primary Consideration 2 – Whether the Applicant engaged in Family Violence
Conclusion: Primary Consideration 2

Primary Consideration 3 – The Best Interests of Minor Children
Child J
Child A
Conclusion: Primary consideration 3

Primary Consideration 4 – The Expectations of the Australian Community
Conclusion: Primary Consideration 4

Other Considerations
9.1 International non-refoulement obligations
9.2 Extent of Impediments if removed
9.3 Impact on victims
9.4 Links to the Australian community
9.4.1 Strength, nature and duration of ties to Australia
9.4.2 Impact on Australian business interests

Findings: Other Considerations
Conclusion
Decision
REASONS FOR DECISION
Member R Maguire
6 October 2021
BACKGROUND

On 5 October 2021, the Tribunal decided to affirm the decision under review. What follows are the written reasons for that decision.
The Applicant seeks review of a decision, dated 13 July 2021, of a delegate of the Minister for Immigration, Citizenship, Multicultural Services and Migrant Affairs (‘the Respondent’), made pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (’the Act’), not to revoke the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘the visa’) made under section 501(3A) of the Act.
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 (28 days, in accordance with regulation 2.52 of the Migration Regulations 1994 (Cth)); and
·The decision-maker determines that the Applicant passes the ’character test’; or
·As provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked.
The Respondent accepted that the Applicant had made the necessary representations within the prescribed period.[1]
[1] Exhibit G1, G Documents, G14, page 52.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Respondent (or their delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record, as defined by section 501(7). Relevantly, section 501(7) states:
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 Applicant is a 37-year-old male citizen of New Zealand.[2] He first arrived in Australia on 20 June 1999 for a period of 7 days.[3] He took up residence in Australia on 3 November 2007 and has since made several trips out of the country over the years.
[2] Exhibit G1, G Documents, G15, page 65.
[3] Exhibit G1, G Documents, G29, page 175.
On 6 March 2020, the Applicant was sentenced to a cumulative total of 8 years and 4 months imprisonment by the Brisbane Supreme Court for a series of offences. The terms of imprisonment were to be served concurrently, with the head sentence comprising 3 years and 9 months imprisonment, suspended after serving 13 months.[4]
[4] Exhibit G1, G Documents, G15, pages 65 to 66.
On 15 May 2020, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of sections 501(7)(a), (b), or (c) of the Act.[5]
[5] Exhibit G1, G Documents, G17, page 76.
In accordance with regulation 2.52(2)(b) of the Migration Regulations 1994 (Cth) (‘the Regulations’), the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after receiving notice. The Applicant requested revocation by the Respondent of the mandatory cancellation on 25 May 2020, within the period and in the manner specified.[6]
[6] Exhibit G1, G Documents, G18, pages 84 to 111.
On 13 July 2021, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act, and on 21 July 2021 the Applicant made the present application to this Tribunal for review of that decision. The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.
The hearing took place on 14 September and 24 September 2021, respectively. The Applicant appeared via videoconference from the Brisbane Immigration Transit Detention Centre and was represented by Ms Jennifer Samuta of Samuta McComber Lawyers. Mr Matthew Hawker of Sparke Helmore Lawyers appeared for the Respondent via videoconference. The complete suite of written material forming the Exhibit Register is further particularised in the Exhibit Annexure attached hereto, marked ‘Annexure A’. The Tribunal received oral evidence from:
·the Applicant;
·Francis Dilworth;
·Louise Frith;
·Mark Booth;
·Michael Berkett; and
·Alton Palu-Utiera.
By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) 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 subsection 501G(1), the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) to affirm the decision under review. At the hearing, the representatives of the parties agreed that for the purposes of this review and section 500(6L)(c), the 84^th day is Tuesday, 5 October 2021. It is therefore open to the Tribunal to decide prior to midnight on that date.
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 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.
It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; or
(b)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 decision to cancel the Applicant’s visa should be revoked.
In first considering section 501CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
… 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…[8]
[7] [2018] FCAFC 151.
[8] 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).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 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 section 501(7) 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”.
As noted above, on 6 March 2020, the Applicant was sentenced to a head sentence of 3 years and 9 months for the offences of “possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4”.[9]
[9] Exhibit G1, G Documents, G14, page 65.
At the hearing, the Applicant’s representative, Ms Samuta, conceded that the Applicant did not pass the character test.[10] Having regard to this concession and the evidence before it, the Tribunal is satisfied that the custodial term imposed was, “a term of imprisonment of 12 months or more”. As such, the Applicant does not pass the character test by virtue of his, “substantial criminal record”, as defined in section 501(7)(c) of the Act.
[10] Transcript, page 3, line 19.
The Tribunal therefore finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and cannot therefore rely on section 501CA(4)(b)(i)[11] of the Act to have the mandatory cancellation decision revoked.
[11] Note: This section provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 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 section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. The purpose of such directions, as stated in paragraph 5.1(4), is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’) has application.[12]
[12] On 8 March 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 No. 90.
Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:
(a)The principles below provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
(b)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.
(c)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.
(d)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.
(e)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.
(f)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 other 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 6 of the Direction requires that, informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in sections 8 and 9, where relevant to the decision.
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 the following primary considerations in making a decision under sections 501(1), 501(2), or 501CA(4) of the Act:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 9 of the Direction. These 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; and
(ii)Impact on Australian business interests.
The Tribunal notes these considerations being ‘other’ considerations, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
… 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.
[Tribunal’s insertions]
[13] [2018] FCA 594 at [23].

The Tribunal now turns to a more detailed consideration of the Direction.
Primary Consideration 1 – Protection of the Australian Community
In considering Primary Consideration 1, paragraph 8.1(1) of the Direction requires that decision-makers should keep in mind the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers are to have regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the Direction requires consideration to be given to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of conduct
Paragraph 8.1.1(1) of the Direction requires that in considering the nature and seriousness of the non-citizen’s offending or other conduct to date, decision-makers must have regard to the following:
(a)Without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)Violent and/or sexual crimes;
(ii)Crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii)Acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)Without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)Causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)Crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)Conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c)); and
(iv)Where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)With the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii), or (b)(i) above, the sentence imposed by the Court for a crime or crimes;
(d)The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
(f)Whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Risk to the Australian community
Paragraph 8.1.2(1) of the Direction requires that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any r future risk becomes lower as the seriousness of the potential risk increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of the Direction requires that in considering the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should be non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)Information and evidence on the risk of the non-citizen reoffending;
(ii)Evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
(c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Primary Consideration 2 – Family Violence Committed by the Non-Citizen
Paragraph 8.2(1) of the Direction reflects the Government’s serious concerns about conferring the privilege of entering or remaining in Australia to non-citizens who engage in family violence. The Government’s concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 8.2(2) of the Direction provides that the consideration of family violence is relevant in circumstances where:
(a)The 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, in the preparation of family violence, and the non-citizen being considered under section 501 or section 501 CA has been afforded procedural fairness.
Paragraph 8.2(3) of the Direction requires that 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 abuse and witness of that abuse (particularly children); and
(iii)Efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has reoffended 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.
Primary Consideration 3 - Best Interests of Minor Children in Australia
Paragraph 8.3(1) of the Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of child affected by the decision.
Paragraph 8.3(2) of the Direction provides that this consideration applies only if the child is, or would-be, under 18 years old at the time of the decision.
Paragraph 8.3(3) of the Direction provides that if there are two or more children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides that in considering the best interests of the child, the following factors must be considered where relevant:
(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, 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; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Primary Consideration 4 – Expectations of the Australian Community
Paragraph 8.4 of the Direction details the expectations of the Australian Community as follows:
(a)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community expects the Government to not allow such a non-citizen to enter or remain in Australia.
(b)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(i)Acts of family violence; or
(ii)Causing a person to enter it into, or being party to (other than being a victim of), a forced marriage;
(iii)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” includes 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;
(iv)Commission of crimes against government representatives or officials due to the position they hold, or in the performance of the duties; or
(v)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
(vi)Worker exploitation;
(c)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; and
(d)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.
Other Considerations
Paragraph 9(1) of the Direction requires decision makers to take into account other considerations, including, (but not limited to):
(a)International non-refoulement obligations, in accordance with paragraph 9.1;
(b)Extent of impediments if removed, in accordance with paragraph 9.2;
(c)Impact on victims, in accordance with paragraph 9.3; and
(d)Links to the Australian community, reflecting the principles in paragraph 5.2 and paragraphs 9.4.1 to 9.4.2.
The Tribunal now turns to a consideration of the evidence, whilst having regard to the Direction.
EVIDENCE BEFORE THE TRIBUNAL
Documentary evidence
The Tribunal had the benefit of reference to:
(a)The G Documents[14] in this matter which, inter alia, included:
[14]    Exhibit G1, G Documents, pages 1 to 199.
(i)The decision under review;[15]
[15]    Exhibit G1, G Documents, G14, pages 52 to 64.
(ii)The Applicant’s Australian and New Zealand criminal histories;[16]
[16]    Exhibit G1, G Documents, G2, pages 65 to 68.
(iii)The sentencing remarks of the Supreme Court of Queensland on 6 March 2020;[17]
[17]    Exhibit G1, G Documents, G2, pages 69 to 72.
(iv)The Applicant’s Queensland Verdict and Judgement and prison records;[18] and
[18]    Exhibit G1, G Documents, G17, pages 80 to 83.
(v)Various submissions, reports and letters of support for the Applicant.
(b)The Respondent’s Tender Bundle[19] which contained:
(i)Material from the Queensland Police Service;
(ii)Material from the Queensland Office and Director of Public Prosecutions; and
(iii)Material from the Queensland Department of Transport and Main Roads.
(c)The Applicant’s Evidence Bundle[20] which contained:
(i)An updated statement from the Applicant dated 9 September 2021;[21]
(ii)An updated statement from D.[22]
[19]    Exhibit R2, Respondent’s Tender Bundle, pages 1 to 131.
[20]    Exhibit A2, Applicant’s Evidence Bundle, pages 1 to 12.
[21]    Ibid, pages CID 1 to 6.
[22]    Exhibit A2, Applicant’s Evidence Bundle, pages CID 7 to 11.
Evidence from the Applicant
Following the mandatory cancellation of the Applicant’s visa, on 25 May 2020, Samuta McComber Lawyers wrote to the Department[23] requesting that the mandatory cancellation of the Applicant’s visa be revoked on the grounds that:
1. The client’s continued presence in Australia posed only a minimal and remote risk of harm to the Australian community;
2. The nature and seriousness of their clients offending was not so serious as to warrant a non-revocation outcome;
3. The best interests of minor children in Australia;
4. The client had ordinarily resided in Australia for a significant number of years; and
5. The client has significant and enduring ties to Australia, including his partner, immediate family, children and friends.
[23] Exhibit G1, G Documents, G18, pages 84 to 85.
The letter further requested that the Department abstain from making any decision until such time as they had been able to provide written submissions in support of their client’s request.
The Applicant subsequently provided a Personal Circumstances Form.[24] In this form, the Applicant acknowledged New Zealand citizenship, and that he had arrived in Australia in November 2009. He nominated a partner who shall be referred to as KL. He stated their relationship started on 26 January 2020. He stated that they had met in 2012 through mutual friends and were close friends until 26 January 2020. He said he fell in love with her and that they intend to move in together. By the time of the hearing these plans had changed and the Applicant is no longer involved with KL.
[24] Exhibit G1, G Documents, G19, pages 91 to 105.
The Applicant described the impact of a negative outcome to his request for revocation as being:
Stress on our relationship;
Communication (time zone)
Cost of calling;
Financially expensive to travel to see me;
Her maintaining my property, vehicle.
At item 8 in the same form, the Applicant listed his minor children, who shall be referred to as A and J. A is a son, who is an Australian citizen, born on 9 September 2019. He resides at St Mary’s in New South Wales. J is a daughter who is a New Zealand citizen born on 12 February 2007 and resides at the Sunshine Coast, in Queensland. The Applicant stated that he would not be living with either child on his return to the community.
Asked to provide details of child maintenance payments, the Applicant simply disclosed “childcare maintenance”. He further stated that he had a good relationship with the boy, A, and spoke with him and his mother most days. He also stated that he saw him most holidays or long weekends. The Applicant described himself as a good partner who helped out in all areas where he could: childcare, presents, clothes, accessories.
The Applicant described impacts of an adverse decision as being that he would not get to see A. It would be expensive to travel to see him, and this would be stressful and lead to long-term depression.
The Applicant disclosed no other minor children who would be impacted by the decision.
The Applicant disclosed three female cousins who were New Zealand citizens resident in Australia as his other close family members. He also nominated 14 uncles and aunts, and 10 cousins in Australia. He nominated 40 uncles and aunts, three nieces and nephews, and 40 cousins, and one grandparent resident in another country.
The Applicant stated that an adverse impact would lead to his missing out on family gatherings, and bonding as a family.
When asked to outline any factors he believed helped to explain his offending, the Applicant responded, “psychiatrist info”. He stated he had completed a course called “Back in Control”. In response to a question whether he was subject to a Domestic Violence Order/Apprehended Violence Order or other Court order, the Applicant ticked the “No” box.[25]
[25] Exhibit G1, G Documents, G19, page 102.
The Applicant disclosed continuous employment from the period 2010 to 2020 with various employers as a panel installer, crystal pools, and tunneller.
Regarding impediments to his return to his country of origin, when asked if he had any diagnosed medical or psychological conditions, the Applicant ticked the “No” box.
When asked if he had any concerns or fears about what would happen to him if you were to return to his country of citizenship, the Applicant again ticked the “No” box.[26]
[26] Exhibit G1, G Documents, G19, page 103.
The Applicant also ticked the “No” box when asked if he was facing any criminal charges/convictions in his country of citizenship.
When asked if there were any other problems he would face if he had to return to his country of citizenship, the Applicant made no response.
The Applicant also provided a statement[27] dated 31 March 2021. In it, he confirmed that he was born in New Zealand in 1984 and attended school there until he was fifteen years old. He completed his third and fourth level carpentry qualifications in Auckland and arrived in Australia by himself in November 2009, at the age of 25. He stated he has lived in Australia ever since.
[27] Exhibit G1, G Documents, G20, pages 106 to 109.
The Applicant said that he has, on a number of occasions, visited family in New Zealand for periods of a week or two.[28]
[28] Exhibit G1, G Documents, G20, page 106.

The Applicant stated that he has been in regular work since 2010, either as a concreter, tunneller, labourer or panel installer up until the time of his incarceration. The Applicant said he had all his machinery training from Australia, including, “excavator, a skip stair (Bobcat, front-end loader, EWP (long boom)”, confined space tickets and other relevant on-the-job safety training. The Applicant stated that whilst in prison he had also completed two occupational health and safety related certificates.
Under the heading “Offending history in Australia”, the Applicant disclosed his convictions and the concurrent sentences imposed in the Queensland Supreme Court on 6 March 2020.
The Applicant said that the offences dealt with on 6 March 2020 all happened during a police raid on his home on 28 July 2018. He also stated that he first used drugs recreationally, trying cocaine when he was around 30, or 31 years old.
The Applicant stated that he also used Methyl Enedioxy Methamphetamine (‘MDMA’) and steroids as he was bodybuilding in 2015. He said he also made acquaintances in the drug subculture, and was in a relationship with a woman named D who used drugs regularly. He expressed the belief that this social exposure and his regular use contributed to his drug-related offending.
The Applicant also disclosed that on 23 May 2019, he was fined $400 for Failure to Appear in Accordance with Undertaking, but that no conviction was recorded. He said, “I have no explanation for this failure”.
The Applicant stated that he stopped using drugs after the raid on 28 July 2018 and started seeking help. He was on bail for the offences until he was sentenced on 6 March 2020. He denied breaching bail and said that he engaged in pertinent and relevant rehabilitation, being counselling and Back in Control drug courses, which consisted of multiple sessions and producing clear urinal drug tests. He was also a positive contributing member to society through his employment during this time.
The Applicant stated that to make sure he didn’t fall back into further drug use through contact with his drug using friends, he moved from Labrador to Pimpama and ceased contact with them.
The Applicant stated that he also sought help from a psychologist. He stated that the “Back in the Control” course educated him regarding triggers and relapse prevention. It directed his thinking to his loved ones and the effect of his drug use on those dearest to him. He described this as being, “most hard-hitting in my journey to rehabilitation”. The Tribunal has had regard for a Certificate of Completion dated 14 January 2020 in relation to the “Back in Control” course which names the Applicant as the recipient for completing the Alcohol and Other Drugs Service six-session group program.[29]
[29] Exhibit G1, G Documents, G22, page 112.
The Applicant stated:
I will not reoffend because I am back in control of my life and the thought of using drugs, and what it has done to me disgusts me.
The Applicant stated that his urine screens had come back negative to substance use and that he had not had any breaches or incidents whilst in prison.
The Applicant also stated that if he is allowed to remain in Australia, he will return to work with the same business for which he worked from 2014 until the time of his incarceration.
The Applicant expressed the view that he would not reoffend as his reoffending was tied up in drug use and the drug subculture, and the company he kept at the time. He said that he was positive he would not reoffend, and that he had too much to lose. He said he had a house which he had mortgaged, a career and a young child, his son A who needed him.
Regarding support and ties to Australia, the Applicant said that he had held consistent employment with the one company from 2014 until the time of his incarceration. His boss was aware of his offending and was willing to re-employ him if he is allowed to remain in Australia. He said his boss was holding the position open for him.
Regarding personal ties to Australia, the Applicant listed:
(a)his two children;
(b)his former partner, KL, who is an Australian citizen;
(c)three named female cousins and other unidentified cousins;
(d)multiple unnamed uncles and aunts; and
(e)unnamed friends.
The Applicant stated that KL and he were in a relationship from 26 January 2020, but that relationship had been under “immense pressure” since he been in prison, particularly as a result of the possible deportation.
The Applicant said his deportation would impact KL, causing stress in the relationship due to communication difficulties due to: time zone differences, the cost of virtual contact, stress about maintaining his property and vehicle in Australia and the cost of her having to travel to New Zealand to visit him.
The Applicant said his family would also be upset if he were to be deported because he would be missed at family gatherings.
The Applicant said that he had a house in Queensland, which is subject to a mortgage.
Regarding the best interests of minor children, the Applicant identified his son, A, born in September 2019, and his daughter J born in February 2007. The Applicant said that he had not seen J since she was two years of age, but was aware that she was located on the Sunshine Coast and she had expressed to his family, who see her regularly, that she’s been asking about him and intends to reach out to him if and when he is released from prison. The Applicant expressed a desire to, “foster and kindle, to the extent that she wishes” his relationship with J.
The Applicant stated he had a good relationship with his son A who resides in Sydney because he speaks to him and his mother “most days”. The Applicant said that he was present at A’s birth and spent a month with him post-birth. The Applicant expressed concern that if he is to be deported, he would not see A for a very long time until the child could afford to travel. He expressed concern that this would cause A significant stress and depression and have a negative impact on him.
The Applicant said that neither child would be permitted by their mothers to visit him in New Zealand and added that there were no Family Court orders in place.
Regarding Impediments to returning to New Zealand, the Applicant stated that he had previously lived in New Zealand and had family there. Deportation would be extremely disruptive to his personal life, as his home and social ties are in Australia, and would extinguish any opportunity for a relationship with his children. The Applicant expressed concerns that deportation would cause him psychological and emotional distress, particularly as he would never be permitted to return to Australia if his visa remained cancelled.
The Applicant also produced documents from Sonic HealthPlus[30] which showed negative results for Instant Urine Drug Screen and/or Breath Alcohol Test Results conducted on him on 4 October 2019, 8 November 2019, and 14 February 2020. In addition to the Certificate of Completion referred to, what appears to be the front page[31] of the Do-It Program Participant Workbook, and Certificates of Attendance[32] in respect of his attendances at a “Self Applied First Degree Usui Reiki” on 7 May 2021, and a “Second Degree Usui Reiki” on 21 May 2021.
[30] Exhibit G1, G Documents G22, pages 113 to 118.
[31] Exhibit G1, G Documents G22, page 119.
[32] Exhibit G1, G Documents G22, pages 120 to 121.
The Applicant also produced a copy of a letter,[33] dated 22 November 2017, from RAMS Financial Advisors advising of the approval of a financial facility for the construction of a home.
[33] Exhibit G1, G Documents, G22, page 122.
Reference from Mr Alton Paul-Utiera of PT Wall Installation Pty Ltd
The Applicant provided an Employment Reference dated 19 May 2020 signed by Mr Alton Paul-Utiera of PT Wall Installation Pty Ltd, who stated that the company was his, and that the Applicant had been working for the company for the last five years.[34]
[34] Exhibit G1, G Documents, G24, page 123.
Mr Paul-Utiera described the Applicant as an efficient and unique employee who had acquired skills during his employment that enabled him to be responsible for multiple tasks and issues within the company and the construction industry. He said the Applicant had initially worked as a casual from the beginning of 2015, and became a permanent full-time supervisor as at 13 January 2016. The Applicant held the position of a prefabricated structural wall system installer, which was a specialised trade. He described the Applicant as, “a valued and well respected member of our company for over five years”. He said they would find it extremely difficult to replace him with someone who would possess the same work ethic, skills and attributes. He said the company was currently holding the Applicant’s position open for him and he could definitely resume his employment when he is released.
Reference from Mr Nathan El-Khoury of Skyscrape Construction
The Applicant also produced an unsigned statement,[35] dated 25 May 2020, which appeared to be from Mr Nathan El-Khoury, a director of Skyscape Construction, who spoke glowingly of his experience working with the Applicant.
[35] Exhibit G1, G Documents, G24, page 124.
Reference from Ms Angeline Garner
The Applicant also produced an unsigned, undated character reference from Ms Angeline Garner, a director of Dynamic Mining Solutions. She stated that she had known the Applicant most of her life growing up in New Zealand and during her time living in Australia. She said that whilst they lived in the same district they would often catch up for lunch and attend family events but had not been living in the same region over the past few years. She described him as having shown, “loving compassion” towards herself and her family. She described the Applicant as a, “loving family orientated person”.
Ms Garner said that when her husband was away with work, the Applicant would be “the male figure so to speak” and offered help with tasks such as building a trampoline, shelves, putting furniture together and walking her dog. In her absence, he would maintain lawns and grounds without being asked. She had been prepared to offer him employment and continues to be so prepared. She committed herself to supporting the Applicant if he is returned to the community.
Statement of Ryan Browne
The Applicant also produced an unsigned statement by Ryan Browne, dated 6 April 2020,[36] in which Mr Browne described his professional relationship with the Applicant, whom he had known for seven years. He described the Applicant’s work as, “precise and professional”. Mr Browne said he would have no hesitation in recommending the Applicant for any future position that he might apply for and would have no hesitation in employing him himself.
[36] Exhibit G1, G Documents, G24, page 126.
Statement of D
The Applicant also produced an unsigned statement by D, dated 4 June 2020,[37] who said that she had known the Applicant for approximately three years, and was the mother of their son, the child A. She spoke positively of his, “hard-working loyal nature” and the good reputation he enjoyed amongst friends and family. She said that after getting mixed up with the wrong crowd, he had shown, “deep remorse… huge regrets and initiative in bettering himself”. She said that A was only six months old when he lost his father, and that the Applicant had, “missed out on his son walking, talking, crawling, starting day care and will soon miss his first birthday”. She said that the Applicant’s deportation would make it extremely hard for him to maintain a relationship with his son, “who should not have to live his life separated from his father any longer”.
[37] Exhibit G1, G Documents, G25, page 127.
Statement of KL
The Applicant also provided a signed undated statement[38] by Ms KL, who said that she had known the Applicant for the last eight years and had been his partner since the beginning of this year.
[38] Exhibit G1, G Documents, G25, pages 128 to 129.
She stated:
I know the last two years for [the Applicant] has been filled with regret and trying to turn his life around. We have discussed at length the charges he is currently serving and that he was stuck in a bad place and around the wrong crowd while selling drugs. We have also spoken about him never wanting to end up in that situation again. He accepts and agrees that he should serve the time he has been sentenced with as he understands the poor choices that led him to be in the situation.
KL reiterated the many ties the Applicant has to Australia. She spoke of the home and employment which awaits him on his release, the drug testing and rehabilitation courses he has undertaken and expressed the belief that he did not want, or intend to reoffend. She said he has a wonderful supportive group of friends and a strong relationship with his son A, whom he speaks daily and exchanges letters and emails. She said the cost of flying A and his mother to New Zealand and back for visitation purposes would not be viable. She expressed the view that in the current climate, there would be no option for them to travel overseas which would mean that the Applicant and his son would no longer have a face-to-face relationship. She expressed the opinion that the contributing factors that had led the Applicant to committing his crimes had been removed and all ties cut.
She said that the Applicant has already demonstrated, since his arrest in 2018, that he can live in the Australian community without reoffending. She also said that in the last two years the Applicant had shown that he has the knowledge and ability to remove himself from any situation that puts him at risk of reoffending.
Statement of Francis Thomas Dilworth
The Applicant also provided a signed, undated statement from his father, Mr Francis Thomas Dilworth. He described his second youngest son as a hard-working lad, very loyal to those whom he allows into his life. He described a young man with a large smile and a quick wit, who would give the shirt off his back to help others in need. He spoke of his son’s successful participation in rugby league, achieving Player of the Year status and being picked for The Queensland Maori Rugby League Team in 2010. He described how his son took up bodybuilding and fitness following an injury forced retirement from rugby league.
Mr Dilworth described how he and his wife assisted the Applicant to secure finance to purchase a home and how he flew to the Gold Coast to assist him with some building issues. He blamed financial stress, and a, “not so savoury group of friends” as factors leading to his son’s drug involvement.
Mr Dilworth expressed the view that his son was glad to be caught so that he could get back some normality to his life, to right the wrong and get on with life. Mr Dilworth said that his son has since been through drug rehabilitation, regular drug testing and the stress of waiting between one and one and a half years for a trial. Mr Dilworth said that he and his wife were happy to support the Applicant, “by any means” after his sentences finished. He said they had arranged for his niece to care for the Applicant’s property and his dogs whilst he was incarcerated and spoken to his employer about keeping his job open. He has also spoken to the Applicant’s friends, who have indicated they will support the Applicant as well on his release. Mr Dilworth said:
I am positive that my son has learned a life lesson and is extremely sorry for what he has done and given a second chance he can offer his son a home and all the love a dad can give with the support of family and friends…
Statement of Shari Brown
The Applicant also provided an unsigned statement,[39] dated 17 May 2020, by Ms Shari Brown. Ms Brown said that she understood that the Applicant is facing deportation in relation to charges of steroids, drugs and weapons, and provided her character reference regarding that prospective deportation. She said she had known the Applicant since 2014, and had always known him to be employed and a, “very driven and motivated person… A respectful person in the community… a very kind and caring man … respected by his friends and is extremely close with his family”.
[39] Exhibit G1, G Documents, G25, pages 134-135.
She described him as having a healthy and stable relationship with his family, and a healthy relationship with his partner KL. She expressed confidence that he presently had the right people in his life and that they will ensure he stays on track in life. She said she believed he is a changed man. She said that when she and her fiancé resided with the Applicant, she observed him getting up at 4:00 AM to go to work for 10 or 12 hours each day. She described him as being goal driven and a very responsible person with money and budgeting and using the service My Budget.
She described the Applicant as a loving father to his son, A, and said that he would never put his son in jeopardy. She said she was very surprised when she heard that the Applicant was being charged with offences and described it as being out of character. She said he had expressed remorse to her and disappointment in himself. Ms Brown stated that the Applicant had remained out of trouble since he was charged, being employed up until the time of his incarceration and maintaining healthy relationships with his friends and family. She said the Applicant was not a threat to the community as is proved by not breaching any bail conditions, and always being employed in prison and undertaking courses to better himself.
Statement of Mrs Amra Alic
The Applicant also provided an unsigned statement[40] by Mrs Amra Alic, dated 23 June 2020. She stated that she had gotten to know the Applicant a year earlier when he moved into the house next door to her. She said she was, “troubled and surprised to hear about his recent case”. She described the Applicant as someone who works well with others, follows the rules, and is both friendly and courteous. She said she had met the Applicant’s newborn son, A, and seen him as a, “great dad”. She said that in his free time, the Applicant was always doing something around his house in the nature of repairs, improvements, cleaning or gardening. She said that the Applicant had already accepted responsibility for his actions, and she believed the Applicant to be, “an honourable individual and a good human being.” She said that she and her husband would be there to support him as a good friend.
[40] Exhibit G1, G Documents, G25, page 137.
Statement of Alisha Higgins
The Applicant produced an unsigned, undated statement[41] by Alisha Higgins who said she was the Applicant’s cousin. She recounted how she spent summer holidays camping with the Applicant in New Zealand and had fond memories of those episodes. She described the Applicant as a kind and courteous family member and said she always found their time together enjoyable. She presently lives on the Gold Coast and has reignited her friendship with the Applicant since moving there. She said they mainly socialised at birthdays and family gatherings. She described the Applicant as still being the same kind quiet and gentle person he’s always been. She said she believed him to be a good person with a good heart who came from a beautiful, loving and caring family. She expressed the view that he had learnt from his past mistakes and would choose to follow a different path to improve himself in the future. She said that she would keep in touch with him and do her best to support him, especially by organising family gatherings so that he is connecting with his loved ones on a regular basis.
[41] Exhibit G1, G Documents, G25, page 138.
Statement of Christopher Chambers
The Applicant also produced an unsigned statement,[42] dated 30 May 2020, by Christopher Chambers, who said he had known the Applicant since mid-2015. They met at a gym, and soon became training partners. They saw each other three to four times a week and he got to know the Applicant very well. They stopped training together in 2017 when the Applicant moved further away, but they remained friends and kept in touch.
[42] Exhibit G1, G Documents, G25, pages 139 to 140.

Mr Chambers described the Applicant as honest, reliable and loyal, with a strong work ethic. He said the Applicant was always employed, often working a six-day week.
He spoke warmly of the Applicant as being a person he could turn to for help whether he be doing renovations around his house, or simply having a chat through rough times. He described the Applicant as always genuine in his words and actions.
Mr Chambers said that the Applicant had demonstrated nothing but remorse since his arrest and had been taking steps to move in a positive direction. Mr Chambers said that since the Applicant was arrested and had been through the courts, he had passed two large milestones in his life, these being becoming a homeowner and becoming a father. Mr Chambers said that he understood that the crime the Applicant had committed was, “unacceptable”, but said that he was serving the appropriate sentence. He expressed the view that keeping the Applicant in Australia was in the greater interests of everyone as he would be close to his friends and family.
Statement of Gavin Luke Browne
The Applicant also provided a signed statement,[43] dated 5 June 2020, by Gavin Luke Browne. He said he had worked with the Applicant and watched him supervise projects for the past six years. He described the Applicant’s soft, respectful, and supportive nature. He said he was aware of the charges that the Applicant had faced, and for which he was serving time. He expressed the view that this should be enough punishment for the Applicant, and “his actions where (sic) a oneoff huge misguided error and was not in line with the man”. He said the Applicant has a great support network here in Australia, and he looked forward to working with him again.
[43] Exhibit G1, G Documents, G25, page 141.
Statement of Louise Frith
The Applicant also provided a signed statement,[44] dated 1 June 2020, from Louise Frith. She said she was the Applicant’s first cousin and had known him her entire life. She described him as a, “most hard-working, efficient and reliable person” and, “an asset to any organisation”. She spoke of his preparedness to help others and his great regret and remorse for getting tied up with the wrong crowd. She stated her intention to live with him in his property, to help him financially, emotionally, and physically. She said he would also have support from his family and partner that reside on the Gold Coast. She said the separation from his home, his dogs and his son would be emotionally and financially straining for all involved. Sending him back to New Zealand would be a heavy strain on his relationship with his son and could send him down the wrong path. Continued residence in Australia would be good for his well-being and mental health.
[44] Exhibit G1, G Documents, G25, page 142.
Statement of Mark Benjamin Ashley Booth
The Applicant also provided an unsigned statement,[45] dated 4 June 2020, from Mark Benjamin Ashley Booth. Mr Booth said that he understood that the Applicant was currently serving a prison sentence, and that his visa status was under review. He said the Applicant had shown remorse and admitted that he’d made a huge mistake. He said he’d known the Applicant for ten years and had become close friends and they had lived together for a short time. He described him as a respectful and tidy housemate who always paid his rent on time. He further described the Applicant as a hard worker, loyal, supportive and caring. He said the Applicant was a, “fantastic and involved father”. He expressed the view that the cancellation of the Applicant’s visa would be detrimental, both to the Applicant and his son and their ability to build a meaningful relationship. He expressed the view that the Applicant was unlikely to repeat his past mistakes.
[45] Exhibit G1, G Documents, G25, page 143.
Statement of Robyn Clements
The Applicant also provided a signed statement, dated 1 June 2020, from Robyn Clements who describe the Applicant as always extremely polite, respectful, and encouraging. She said he offered to help her with handyman work at her home. The Applicant had shared many social occasions with her family and felt like a member of the family. She described him as having extremely strong family values and a strong work ethic, generous with his time, and one of the kindest and most caring people she had ever met. She had become aware of the Applicant’s issue with drugs and he had assured her he wanted to get help for his addiction. She said he had expressed extreme remorse for his actions and for the shame he felt he brought to his family and friends. She said he was seeking professional help for his dependency issues prior to his incarceration. She said that she felt he wanted to better himself and demonstrate that he is a valuable member of society. She promised to be a close and strong support person for him and to be available for him as he forged his future.
Statement of Michael Berkett
The Applicant also provided an unsigned statement, dated 4 June 2020, from Michael Berkett, who said he’d known the Applicant for over ten years in a variety of capacities. He described him as a very dedicated and hard-working person, and “a role model in and out of work”. He described him as very trustworthy. He spoke of the Applicant’s adoration for his son and said that he would be supportive of him if he was released into the community. He said the Applicant had changed and was focusing on being the best father and having a bright future with his career choice, friends, and family.
Statement of Jeremy Fortes
The Applicant also provided an undated unsigned statement[46] from Jeremy Fortes who said he’d known the Applicant’s family since he was twelve years old and had attended school with three of the four Dilworth brothers. He said he did not condone the Applicant’s behaviour, and that he knew the Applicant would be very sorry for what he done. He said he would do everything in his power to make sure the Applicant did not reoffend. He blamed the Applicant’s offending on the fact that he been, “caught up in the wrong crowd” and that given a second chance he would get his life back together and build a relationship with his son.
[46] Exhibit G1, G Documents, G25, page 146.
Applicant’s Further Evidence
The Applicant provided a statement[47] dated 10 June 2021. This statement had an Annexure CID – 01[48] in which he offered comments on his New Zealand criminal history.
[47] Exhibit G1, G Documents, G28, page 170.
[48] Exhibit G1, G Documents, G28, pages 171 to 172.
He also acknowledged that he’d previously falsely declared that he had no criminal convictions on incoming passenger cards including from prior to his initial arrival in Australia in 2009. He said he came to Australia to change his life for the better and was worried his mistakes of the past would prohibit any chance for a better future in Australia. He recognised that this was wrong and that he should have been truthful in his declarations.
The Applicant said he believed he had done, “exceedingly well” during his time in Australia. He said that Australia was now his home as he had lived in Australia since 2009 and maintained consistent and purposeful employment. He said that prior to his 2018 offences he’d been a good person and a, “good biding (sic) citizen here in Australia with no violent history”.
The Applicant described his 2018 offending as a, “life changing mistake” which had affected his entire family. The Applicant said he knew for a fact that he would not reoffend again and had learned many lessons during his incarceration. He said he wanted to be a good father to his child who is nearly two years old and being deported to New Zealand would remove any opportunity for meaningful parentage. He said that he had the full support his family, partner, friends, and work colleagues.
The Applicant said that he had been taking the right steps to better himself whilst on bail prior to incarceration and whilst incarcerated, had participated in rehabilitation programs in immigration detention. He said that he honestly thought he changed for the better.
In the Annexure CID – 01, the Applicant commented on ten offences he had committed between July 2001 and 12 April 2015.
The first of these offences was burgles by night in 2001, when he was seventeen years of age. He was sentenced to four months periodic detention. The Applicant said he was young and hanging around all the boys who pressured him to do something he didn’t want to do.
On 11 August 2004, the Applicant was sentenced to 200 hours community work in respective three charges comprising: Resist police, Common assault and Disorderly Behaviour likely cause violence. The Applicant said that these offences followed on from a car accident which resulted in, “an exchange of words and a physical altercation”. He said he was, “still upset and agitated when police showed”. The Applicant said that he had a lot going on in his life at this stage – he was young, had lost direction and had no coping skills. He said he felt worthless and disappointed in himself for letting his family and friends down. He said this type of offending was unlikely to recur as he had matured and had better coping mechanisms, and this was reflected in the ten years (between 2005 and 2015) that he did not similarly reoffend.
On 14 April 2015, the Applicant was convicted of charges of Resist Police and Fighting in public place (family violence) for which he received fines of $200 and $100 respectively and was ordered to pay costs of court of $130. The Applicant said that this offending occurred during a trip to New Zealand to attend his father’s birthday. The incident arose in consequence of a sexual assault by another patron on the Applicant’s sister-in-law. The Applicant said he did not believe that he had a propensity for violence and that the offences were situation specific.
On 6 May 2005, the Applicant was convicted of Injuries – intent to GBH and sentenced to twelve months imprisonment. The same day, he was convicted of Common Assault. The Applicant said these offences occurred in the context of a toxic relationship which he was involved in on and off between 2003 and 2005, and which eventually broke down. He said he was mentally and emotionally drained and closed off from the world around him. He was anxious and had a lot of self-doubt and trust issues as he was cheated on throughout the relationship. He also said that he was, “heavily intoxicated at the time”. He said the charge, intent to GBH, was negotiated by his lawyer at the time. The incident was not premeditated and, “in no way” did he intend harming his victim. He went to his ex-partner’s and her new partner’s home, and matters escalated between the partner and himself and they ended up in a physical altercation. He stated he was young and couldn’t cope with life’s stressors at the time, and that this sort of violence re-occurring was unlikely as he had better coping mechanisms.
The Applicant provided a further signed statement[49] of his own, dated 9 September 2021. Paragraphs 23 to 35 of this statement were a repetition of his statement of 10 June 2021. The Applicant stated that he’d been born in New Zealand and attended school there until he was fifteen years old, and subsequently completed his third and fourth level carpentry qualifications in Auckland. He arrived in Australia by himself in November 2007 at approximately 23 years of age and has lived here since. He said he had returned to New Zealand on several occasions, usually to visit family for a week or two before returning to Australia.
[49] Exhibit A2, Applicant’s Evidence Bundle, pages CID 1 to 6.
The Applicant set out a continuous work history since 2010 and described various trade qualifications he had earned. He said that he had completed two occupational health and safety certificates whilst in prison.
The Applicant set out the offences for which he was sentenced on 6 March 2020 and said that they all occurred during a police raid on his home on 28 July 2018. He said he first used drugs recreationally trying cocaine when he was around 30 to 31 years of age. He said he also used MDMA and steroids as he was bodybuilding in 2015 and what began as a social activity became an addiction. His substance abuse and offending coincided with financial issues because he was renting a unit while building a house, and having to pay $900 a week both in rent and mortgage from earnings of $1500 per week. The amount of rent and mortgage payments on top of the money he needed to sustain his drug use was unsustainable.
He said he was also having, “difficulties” in his relationship with his son’s mother D, who used drugs regularly. He attributed his offending to his financial issues, relationship issues and associated stress and depression.
He said he had no explanation for his failure to appear in accordance with an undertaking charge on 23 May 2019.
The Applicant said that following the police raid on 28 July 2018, he was on bail for these offences until he was sentenced on 6 March 2020. He said he did not breach bail and engaged in pertinent and relevant rehabilitation. He also produced clear drug tests during this period and said he was a positive contributing member to society through his employment. He said he had sought help from a psychologist and attended the Back in Control drug rehabilitation program. This educated him on how drugs work, the triggers and relapse prevention. He also said that he had started the Do It program aimed at preventing relapse into drugs and alcohol and that had joined Circuit Breaker program and was two weeks into the ten week program.
The Applicant expressed the view that he would not return to drugs and had no doubt about not relapsing. He said he been clean of drugs for years. He said that he intended to return to work with his former long-term employer PT Wall Installation.
The Applicant said that his family and older long-term friends and even his partner at the time were not aware of his drug offending of the extent or his drug use.
The Applicant said his father had been helping him with his expenses including legal fees and mortgage payments which meant that if his visa were to be reinstated he would be returning to the community, to a stable home and employment. He said he would not be in a state of financial pressure as he was at the time of his criminal offending. If permitted to stay in Australia, he wanted to enrol in life skills course to help him cope out in the community.
The Applicant said that his former long-term employer, Mr Alton Paul-Utiera, knew of his offending and was willing to re-employ him and was in fact holding a position open for him.
The Applicant said that he had multiple ties to Australia including:
(a)His two children;
(b)his former partner KL;
(c)his cousin Louise Frith;
(d)his cousin Angeline Hohaia;
(e)his cousin Alisha Higgins;
(f)other cousins;
(g)multiple uncles and aunts; and
(h)his friends.
The Applicant stated that he and KL were in a relationship from 26 January 2020 but were currently separated. They met in 2012 and have hopes of reconciling. His deportation would cause stress on the relationship, stress about maintaining his property and vehicle in Australia and the cost of her having to travel to New Zealand to visit him.
The Applicant said that his family in Australia would also be upset as he would be missing from family gatherings. He confirmed he owned premises in Pimpama which was subject to a mortgage.
Regarding the best interests of minor children, the Applicant said that he had two children, namely A born in 2019 and J, born in 2007. He had not seen J since she was two years of age, but said he was aware that she was located on the Sunshine Coast of Queensland and had expressed that his family, who see her regularly, said she had been asking about him and intended to, “reach out” to him when and if he was released from prison. He said he intended to foster and kindle a relationship, “to the extent that she wishes.”
The Applicant said that he had a good relationship with A because he spoke to him and his mother D most days. He was present when A was born and spent a month with him after he was born.
The Applicant said that A had shown behavioural issues which are possibly symptomatic of Autism and was currently seeing specialists. The Applicant expressed concern about the impact on A of having an absent father and said if he is deported, he will not be able to see A for a very long time until he can afford to travel. He expressed concern for his own stress and depression in consequence, as well as the negative impact on A.
The Applicant stated that he did not want to make the same mistake with A that he made with J. He said he would aim to move to Sydney so that he could be actively involved in A’s life.
He said there were no Family Court orders in place in relation to the children, but neither of them would be able to visit him in New Zealand.
The Applicant said that he previously lived in New Zealand and had family there. However, deportation would be extremely disruptive to his personal life as his home and social ties are in Australia, and deportation would extinguish any opportunity for relationships with his children in Australia. He expressed concern that this would cause him psychological and emotional distress as he would never be permitted to return to Australia if his visa remained cancelled.
Further Statement of D
The Applicant provided a further signed statement of D, dated 8 September 2021.[50] D said that she had a two-year relationship with the Applicant, and they had a son A. She expressed a preference that the Applicant be able to hold a visa as it would otherwise negatively impact her son’s and her lives.
[50] Exhibit A2, Applicant’s Evidence Bundle, page CID 8.
She described the Applicant as hard-working, ambitious, loyal and eager to provide a helping hand. She expressed awareness of his criminal history and the term of imprisonment which has led to the cancellation of his visa. She said she was present the night he was charged for drug-related offences but was not aware of the illegal activities which lead to his incarceration. She said that she has since come to know that these activities predated the commencement of their relationship. She said she did not know what he had become involved in until the night of his arrest.
She said the Applicant got mixed up with the wrong crowd. Since his offending he had shown deep remorse, regret, and bettered himself by attending drug rehabilitation classes and workshops.
D acknowledged that there is a Protection Order in place until 2024, and that this was for an incident that occurred on 4 February 2019. She said despite this order and what had occurred, she did not fear for her safety and did not believe that the Applicant would bring harm to her. She had moved on and had a new life with a new partner. She said he was trying to be a good father within the constraints of his current predicament.
D said that she stopped living with the Applicant when she was eight weeks pregnant, following the domestic violence incident of 4 February 2019. It took her a week to make arrangements to move elsewhere which she did, moving in with her parents in New South Wales. She allowed the Applicant to stay with her for two weeks at her parents’ home in the lead up to A’s birth. She and the Applicant stopped talking prior to his incarceration. She reached out to him whilst he was serving his sentence and invited contact.
D expressed concern for A’s future without his father and the permanent separation that visa cancellation would cause. Having experienced growing up without a father herself, she expressed concern about the emotional and psychological hardship that this can bring on a child, especially in the teenage years. She said she had made appointments for A to see medical specialists regarding possible autism. She said the Applicant’s ability to financially support them would be better in Australia than it would be in New Zealand.

In terms of his future plans if permitted to remain in Australia, residing at Pimpama appears to be the most promising circumstance for him to return to the community (provided he has in fact severed his contact with those he claims led him astray), as he would have reduced debt, security of stable familiar employment and the support of his cousin and friends.
However, that circumstance is not risk-free. Of some concern to the Tribunal is that the Applicant’s past drug use stemmed (if he is to be believed) at least in part from his use of steroids to repair muscle damage he incurred at work. Of further concern is the Applicant’s acknowledgement that a drug subculture permeates employment in the construction industry.[117] The Tribunal is concerned that the Applicant’s optimal plan involves returning to work in employment in an industry which he has stated is permeated by a drug subculture. Moreover, he will be in the very same employment he was in when he commenced using drugs. He would also be returning to his former place of residence. In this scenario, it would appear to be a matter of time before the Applicant again came into contact with bad influences and that there would be a real risk that he may revert to use of steroids to repair muscle damage.
[117] Transcript, page 39, line 26; page 40, line 15.
However, living at Pimpama and returning to his former employment does not appear to be the Applicant’s long-term plan. He has floated the prospect of working in, “the mines”. In that scenario, he would be without the support and understanding of his former employer and contact with his cousin and other nominated support persons would be, at a minimum, lessened. He has also floated the prospect of moving to Sydney to be closer to his son A and this would also lessen the supports he would have were he to continue to live in Pimpama and remain in his former employment. He did not give evidence as to how he could develop his relationship with J in this scenario.
The Tribunal considers that if the Applicant were to continue to reside in Pimpama and return to his former employment (where he first used drugs and in an industry permeated by a drug subculture) there would be a real risk that he would re-offend in the fullness of time. It is difficult to see him escaping that risk whilst he continues to be exposed to his chosen industry’s drug subculture. His plans regarding working in mines or in Sydney appear remote and uncrystallized and there is insufficient evidence before the Tribunal to allow it to conclude that either of such moves would lessen or eliminate his risk of reoffending.
Rehabilitation
In his favour, the Applicant has told the Tribunal that he last took drugs around the time that he was arrested[118] and whilst on bail he undertook the Back in Control program,[119] and whilst at Pinkenba he undertook the Do it program.[120] He had also completed other booklets which deal with stress, problem solving and anger management.[121] He said he had been, “heavily involved” in these courses,[122] expressed confidence he would not return to drug use[123] and that he had been doing urine tests. Aspects of this evidence fell outside the two-day rule and led to the hearing later being adjourned to 24 September 2021.[124]
[118] Transcript, page 8, line 22.
[119] Ibid, line 26.
[120] Ibid, line 36.
[121] Ibid, line 45 to 46.
[122] Transcript, page 10, line 37
[123] Ibid, line 45; page 11, lines 9 to 15.
[124] Transcript, page 9, lines 13 to 45.
Also in his favour, the Applicant has had no breaches or incidents whilst in prison or immigration detention[125] and it is true that he has spent time in the community whilst on bail since his most recent offences. The Tribunal does give weight to these matters.
[125] Transcript, page 11, lines 16 to 17.
Psychologist Peter Stoker in his report[126] said that the Applicant was suffering a Polysubstance Abuse Disorder (based on the criteria set out in the Diagnostic & Statistical Manual of Mental Disorders – Fifth Edition, American Psychiatric Association [DSM –V]). Mr Stoker stopped short of expressing a view as to the Applicant’s likelihood of re-offending but opined that he would benefit from further outpatient drug rehabilitation treatment to reinforce his drug free status, and this would reduce his chances of re-offending. The Tribunal has already observed that the Applicant did not make full disclosure of his circumstances to Mr Stoker, and the Tribunal is concerned as to the extent that Mr Stoker’s report may have been impacted by material non-disclosure by the Applicant. The Tribunal has already recorded its findings as to the Applicant’s credibility, and these factors must lessen the weight that might otherwise be given to Mr Stoker’s report. In any event, the Tribunal finds Mr Stoker’s report somewhat vague and uncertain as to the Applicant’s risk of re-offending. Perhaps he was unable to be more precise as he only saw the Applicant on one occasion, 28 November 2019. His assessment also turned on the Applicant undertaking further outpatient rehabilitation and the Tribunal is not satisfied that the Applicant would in fact undertake such rehabilitation if left to his own devices in the community and not under the pressure of potential deportation.
[126] Exhibit R2, Respondent’s Tender Bundle, Respondent’s Summonsed Document 2, pages 34 to 41.
Taking all of the foregoing into account, the Tribunal finds for the purposes of paragraph 8.1.2 that the overall risk to the Australian community should the Applicant commit further criminal offences or engage in other serious conduct is unacceptable, and this weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Direction and has also had regard to the principles set out at paragraph 5.2 of the Direction. The Tribunal finds that the nature of the Applicant’s offending conduct is very serious, and that there is a real likelihood that he will engage in further criminal, or other very serious conduct if returned to the Australian community. Weighing up the findings in respect of paragraph 8.1.1 and 8.1.2, the Tribunal finds that overall, a consideration of paragraph 8.1 of the Direction weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration 1 weighs heavily in favour of non-revocation.
The Tribunal now turns to the considerations listed in paragraph 8.2 of the Direction.
Primary Consideration 2 – Whether the Applicant engaged in Family Violence
Paragraph 8.2(1) of Direction No. 90 records that 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-citizens. Subparagraph (2) provides that this consideration is relevant in circumstances where the non-citizen has been convicted of an offence that involved family violence or 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.
The Applicant has engaged in family violence in New Zealand and Australia.
On 5 June 2004, in New Zealand, the Applicant committed the offence of Intent to GBH for which he was sentenced on 6 May 2005 to a period of imprisonment for twelve months. The Applicant gave an account of this[127] to the Minister in which he stated:
This occurred in the context of a toxic relationship which I was involved in off and on between 2003 and 2005, which eventually broke down. I was mentally and emotionally drained and closed off from the world around me. I found that I was anxious and had a lot of self-doubt and trust issues as I was cheated on through the relationship. The victim was the new partner of my ex-partner. I was heavily intoxicated at the time.
The charge indicating “intent to GBH” was negotiated by my lawyer at the time. The incident was not premeditated. In no way did I intend on harming my victim. I was heavily intoxicated at the time and in my mind was returning to my home (I lived around the corner), but instead showed [up] at my ex-partner’s home and her new partner appeared wielding a knife, and matters escalated between the partner and I and we ended up in a physical altercation.
I was young and couldn’t cope with life stressors at the time. This sort of violence re-occurring is highly unlikely given that it was so situation specific (including being highly intoxicated and disoriented, presence of a third party (the new partner) yielding (sic) a knife and being aggressive, low emotion and mental health following relationship difficulties).
This type of offending is unlikely to re-occur as I have matured, and have better coping mechanisms. This is reflected in the period of 10 years where I did not similarly reoffend (between 2005 and 2015), the reoffending which was very different in nature and cause.
[127] Exhibit G1, G Documents, G28, page 171.
Before the Tribunal, the Applicant agreed with the suggestion by Mr Hawker that in wielding a knife, the victim of his assault had been acting in self-defence of those at the house who were fearful of his presence there.[128]
[128] Transcript, page 18, lines 15 to 25.
Further, the Applicant’s 2015 conviction for Fighting in public place (Family violence) falls within the inclusive definition of what constitutes family violence in paragraph 4(1) of Direction No. 90.
In Queensland, the Applicant committed a further act of domestic violence which resulted in a Domestic Violence Protection Order being served on him on 4 February 2019, and which remains current until 15 May 2024. This is the episode referred to above, where the Applicant assaulted his then partner who was at the time eight weeks pregnant. The victim declined to make a formal police complaint of criminal conduct, however there is evidence from an independent and authoritative source indicating that the Applicant has been involved in the perpetration of family violence in Queensland resulting in the Protection Order referred to above.[129]
[129] Exhibit R2, Respondent’s Tender Bundle, Respondent’s Summoned Document 1, pages 9 to 12.
This Applicant has been involved in three serious episodes of domestic violence over a period of some fifteen years. Whilst such episodes could hardly be described as “frequent”, it must be observed that there is limited information before the Tribunal regarding his New Zealand acts of family violence. As stated above, however, the Tribunal regards an act of family violence against a woman who is eight weeks pregnant as being very serious indeed. Having regard to the Tribunal’s finding as to the Applicant’s credibility the Tribunal finds it difficult to assess the degree to which he accepts responsibility for his past family violence, or the extent to which he understands the impact of his behaviour on the abused. There is nevertheless objective evidence that he has made some efforts to address factors which have contributed to this conduct. The outcome of those efforts remains to be seen.
Conclusion: Primary Consideration 2
The Tribunal has had regard for the totality of the considerations contained in paragraph 8.2 of the Direction and concludes that this consideration must weigh heavily against revocation of the mandatory cancellation of the Applicant’s visa.
The Tribunal now turns to the considerations listed in paragraph 8.3 of the Direction.
Primary Consideration 3 – The Best Interests of Minor Children
In accordance with Article 3 of United Nation’s Convention of the Rights of the Child, a decision-maker should treat the best interests of any child under eighteen as a primary consideration. This is in line with paragraph 8.3 of the Direction.
Child J
The Applicant has advanced three different scenarios for his future if he is permitted to remain in Australia. Each scenario will impact differently on the child J. In the first scenario he will return to his former employment and reside at his home in Pimpama.[130] In this scenario, he would only be a couple of hours drive away from J, but he has only been a couple of hours drive from her for some time and does not appear to have made any meaningful effort to re-establish or maintain contact with her. It is unclear to the Tribunal precisely how the Applicant intends to pursue his relationship with J and his assertion that she knew who he was and had asked questions about him was unsupported by other evidence. He did not give evidence of any attempts he has made to re-establish or maintain contact with her since they have both lived in Australia.
[130] Transcript, page 15, line 9.
It appears to the Tribunal that J’s mother and step-father, who have filled the day-to-day parental role for J for nearly all her life, will not support and facilitate the development of a relationship between the Applicant and J. There was no evidence that they had invited the Applicant to play any role in her life at any time. Indeed, the evidence was very much to the contrary. For instance, the Applicant stated:[131]
Look man it’s a touchy subject. It’s a touchy subject. I’ve always wanted to reach out to my daughter but I’ve tried to reach out before. Obviously, he didn’t want me to be part of her life, her new partner, He reckoned it would cause too much stress upon their family and upon the kids, which has nothing to do with me with the kids because all I want to do is rekindle with my daughter. So obviously if I can’t do that, obviously I have to wait till she’s 18, until she is old enough I supposed to come look for me.
[131] Transcript, page 36.
It is clear that the Applicant has played little or no parental role in the life of J and his desire to do so appears belated and unconvincing. He has had twelve years to seek to develop this relationship and he has not done so. The Applicant appears to be reconciled to the fact that because of J’s stepfather’s attitude it is unlikely that he will have any significant involvement with J at least until she is eighteen. This is perhaps reflected in his talk of working far away from her in mines or moving to Sydney. In either of these scenarios, the prospect of the Applicant playing any meaningful role in her life appears remote.
No criticism was made of the quality of parental care presently being given to the child J and no suggestion was made that the Applicant intends to seek custody of her.
The Applicant said he was unsure as to how J would be impacted by his deportation and the evidence before the Tribunal is insufficient to allow it to form any concluded view as to the extent of this impact on the child J.
Child A
The Applicant agreed with a suggestion from Mr Hawker that when asked to describe his relationship with each of his minor children, the focus was on the child A[132] who resides in Sydney with his mother (who has a Domestic Violence Order against the Applicant which will remain current until May 2024). The mother nevertheless has reached out to the Applicant whilst he has been in prison and has facilitated contact between the Applicant and A via Facetime. There seems to be reason to believe that she would facilitate contact between A and the Applicant if he was to remain in Australia, notwithstanding the currency of the Domestic Violence Order. If he does not remain in Australia, there appears to be no reason to believe that she will not allow the Applicant to continue Facetime and similar contact with the child in the future, if the Applicant is genuine in his stated desire to maintain that contact.
[132] Transcript, page 37, lines 41 to 46.
There is speculative evidence that the child A may suffer autism. There is no expert evidence of whether the child suffers from autism or how he will be impacted by the Applicant’s absence. Similarly, there is a paucity of evidence the Applicant’s deportation will affect his ability to financially support the child.
The Tribunal nevertheless accepts that it is generally in the interests of any child to be able to have involvement with a biological parent, and the interests of both children require that the Applicant at least have the opportunity of mutually agreed contact with them, and this consideration therefore is given some weight in favour of revocation of the review decision.
Conclusion: Primary consideration 3
This Primary Consideration weighs in favour of revocation.
Primary Consideration 4 – The Expectations of the Australian Community
The Direction makes clear that it is not the function of the Tribunal to independently assess community expectations in this case, but to proceed on the basis of the government’s views, as articulated in the Direction.
The Tribunal gives weight to the very clear unequivocal language of the simple proposition found in paragraph 8.4(1) of the Direction. It is in these words: “The Australian community expects non-citizens to obey Australian laws while in Australia”. The language could not be clearer. Neither could the Applicant’s failure to meet this expectation.
He has committed acts of family violence and has committed criminal and traffic offences which endanger the health, lives and safety of Australian residents.
Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable real risk that he will do so again. The Tribunal believes the Australian community would expect that the Applicant should not hold a visa.
Conclusion: Primary Consideration 4
The Tribunal finds that Primary Consideration 4 weighs heavily in favour of non-revocation.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
9.1 International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. The Tribunal finds that this consideration is not relevant to the determination of this application.
9.2 Extent of Impediments if removed
In considering the extent of impediments the Applicant may face in New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), the Tribunal has taken into account that the Applicant is a 37 year old able-bodied male who suffers the condition identified by psychologist Peter Stoker, but appears otherwise to be in good health.
He has lived in Australia since 2009, but is well familiar with New Zealand, having spent the first twenty or so years of his life there. His parents and siblings live there, and many relatives. It is likely he will return to live with his parents, at least in the short term, and this should assist him to assimilate back into New Zealand society. He will encounter no language or cultural barriers and will have access to the same social, medical, and economic support available to other citizens. He would have access to government benefits similar to those available in Australia.[133]
[133] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296.
The Applicant has a strong employment record and there was no evidence to suggest that he would experience difficulty finding suitable employment in New Zealand.
Overall, the Tribunal finds that Consideration 9.2 is of neutral weight.
9.3 Impact on victims
There is no specific evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims and the Tribunal therefore makes no finding, giving this consideration neutral weight.
9.4 Links to the Australian community
In considering paragraph 9.4, the Direction requires that decision-makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
(i)The strength, nature, and duration of ties to Australia; and
(ii)The impact on Australian business interests.
9.4.1 Strength, nature and duration of ties to Australia

This Applicant arrived in Australia as a young man and has now lived in Australia for twelve years. He presently has no partner. He is generally well liked and respected by those who have come forward to speak on his behalf. He does have other relatives in Australia, but only one of them gave evidence on his behalf before the Tribunal. He has a strong employment record and this weighs in his favour.
The Applicant has the two minor children referred to above and notwithstanding his limited contact and relationship with them, the Tribunal gives weight to this.
A consideration of paragraph 9.4.1 of the Direction weighs in favour of revocation.
9.4.2 Impact on Australian business interests
The Applicant has conceded that his deportation will not impact on Australian business interests,[134] and the Tribunal finds that it is not relevant.
[134] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 69.
FINDINGS: OTHER CONSIDERATIONS
The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Extent of impediments if removed: neutral.
·Impact on victims: neutral.
·Links to the Australian community: weighs in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration 1 weighs heavily in favour of non-revocation;
·Primary Consideration 2 weighs heavily in favour of non-revocation;
·Primary Consideration 3 weighs in favour of revocation
·Primary Consideration 4 weighs heavily in favour of non-revocation;
·To the extent that Other Considerations and Primary Consideration 3 weigh in favour of revocation, they cannot, even when combined, outweigh Primary Considerations 1, 2, and 4.
A holistic application of the Direction therefore favours 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 309 (three hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

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

Dates of hearing: 14^th and 24^th September 2021

Solicitors for the Applicant: Ms J Samuta, Samuta McComber Lawyers

Solicitors for the Respondent: Mr M Hawker, Sparke Helmore
ANNEXURE A – Exhibit Register

Exhibit Number	Description	Date of Document	Party	Filing Date
G1	Section 37 G Documents (G1 – G31, pages 1 -199)	R	20 AUG 21
R1	Respondent’s Statement of Facts, Issues and Contentions	01 SEP 21	R	09 SEP 21
R2	Respondent’s Tender Bundle (pages 1 – 126)	R	01 SEP 21
A1	Applicant’s Statement of Facts, Issues and Contentions	19 AUG 21	A	19 AUG 21
A2	Applicant’s Evidence Bundle (pages 1 – 12) including documents numbered AE1 – AE4.	A	09 SEP 21
A3	Statutory Declaration of Caleb Dilworth with annexures	A	20 SEP 21

[2021] AATA 3570

5 October 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2021/4878
GENERAL DIVISION	)

Dates of hearing:	14^th and 24^th September 2021
Solicitors for the Applicant:	Ms J Samuta, Samuta McComber Lawyers
Solicitors for the Respondent:	Mr M Hawker, Sparke Helmore