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

DJPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1773 (15 June 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1871
Re:DJPM
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:15 June 2020
Place:Brisbane

The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s501(2) of the Migration Act 1958 (Cth) to cancel the Applicant’s visa.
..............................[SGD]..........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Cancellation of Applicant’s visa under s501(2) of the Migration Act 1958 - where Applicant does not pass the character test – whether discretion not to exercise the power to cancel the subject visa – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)

CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
15 June 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 27 year old citizen of the United Kingdom.[1] In 1999 at the age of six he relocated to Australia with his parents and sister.[2] The most recent visa granted to him was a Resident Return Class BB Subclass 155 visa (“the visa”).[3]
[1]     Exhibit G1, G-Documents, G18, page 67.
[2]     Exhibit G1, G-Documents, G6, page 31; G18, page 67.
[3]     Exhibit G1, G-Documents, G18 page 67.
On 25 November 2019 a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) issued the Applicant with a Notice of Intention to Consider Cancellation of his visa. The Applicant provided a submission dated 22 December 2019, giving reasons why his visa should not be cancelled (“submission”). On 13 February 2020, the Respondent cancelled the Applicant’s visa under s501(2) of the Migration Act 1958 (Cth) (“the Act”).[4] The Applicant applied to the Tribunal for review of that decision on 31 March 2020.
[4] Exhibit G1, G-Documents, G4, page 17.
The hearing of this application proceeded on 4 June 2020. The Applicant and his partner, Ms C, gave evidence by video link. Dr Tom Hogan, psychiatrist, and the Applicant’s mother gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Section 501(2) of the Act provides that:
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the character test; and
(b) the person does not satisfy the Minister that the person passes the character test.
The Tribunal has jurisdiction to review the decision pursuant to s500(1)(b) of the Act.
There are, therefore, two issues presently before the Tribunal:
(a)whether there is a reasonable suspicion that the Applicant does not pass the character test, and whether the Applicant does not satisfy the Tribunal that he passes the character test; and
(b)whether the Tribunal should not exercise its discretion conferred by s501(2) of the Act to cancel the Applicant’s visa.
The character test is defined in s501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase is relevantly defined in s501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In 2016 the Applicant was sentenced to a term of three years imprisonment with immediate release on parole. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[5]
[5] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Minister reasonably suspected that the Applicant does not pass the character test and that the Minister was reasonably satisfied that the Applicant does not pass the character test.
Accordingly, the discretion in s501(2) of the Act to cancel the Applicant’s visa is enlivened.
THE TRIBUNAL’S DISCRETION
In considering whether to exercise the discretion in s501(2) of the Act, the Tribunal is bound in accordance with s499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[6] The Direction provides (at Section 2, paragraph 7) guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
a) must take into account the considerations in Part A… in order to determine whether a non-citizen will forfeit the privilege of…continuing to hold, a visa….[7]
[6] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[7] The Direction, sub-paragraph [7(1)(a)].
The considerations relevant in the context of a cancellation decision appear in Part A of the Direction. Paragraph 9 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non‑exhaustive list in paragraph 10 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[8]
Direction 65 [now Direction 79] 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.[9]
[8] [2018] FCA 594.
[9] Ibid at [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision‑maker’s application of the primary considerations and other considerations, are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant’s family moved from the United Kingdom to South Australia in 1999 when he was six years old. He had some difficulties at school: he suffered from dyslexia and struggled academically, and he was bullied because of his small stature.[10] There is evidence in the Tribunal material that the Applicant was assessed as having a low IQ.[11] From when he was around 16 years old he suffered from anxiety and depression.[12]
[10]    Exhibit A2, Medical Report of Dr Hogan dated 5 September 2016, page 6.
[11]    Ibid, page 8.
[12]    Exhibit R1, Supplementary material, page 153.
In 2012 the Applicant moved out of the family home and into shared accommodation.[13] There he started using cannabis.[14] He commenced a relationship with another resident, Ms C, who also used cannabis. They used cannabis together.[15] For a period the Applicant was also misusing his diabetes medication under the mistaken belief that it would make him grow.[16] The Applicant and Ms C moved to Queensland in December 2014[17] because she wanted to be near her family for support. In November 2015, Ms C had a baby, Child A. It was not a planned pregnancy. The Applicant was 22 years old at this time.
[13]    Transcript, page 19, line 1.
[14]    Transcript, page 19, lines 18 to 19.
[15]    Transcript, page 19, line 32.
[16]    Transcript, page 19, lines 34 to 43.
[17]    Transcript, page 20, lines 13 to 15.
One day in January 2016, Ms C had been very stressed and the Applicant looked after the baby while Ms C had a sleep. The Applicant had been using large amounts of cannabis since his grandmother had died, he had lost his job and he was finding having a new baby stressful. He found it difficult to care for the new baby and he found the baby’s crying very hard to take.[18] He tried to give the baby a bottle but she continued to cry. He thought she might have been in pain. He took two OxyContin tablets.[19] He told the Tribunal that he took the OxyContin to make sure that it would be safe to give to the baby, and it made him feel relaxed so he thought it would help her.[20] He put an OxyContin tablet into the baby’s bottle where it dissolved.[21] He took the baby for a walk and after around 45 to 50 minutes, realising that the baby would be hungry, he gave her the bottle. He brought her home and put her to sleep. This was around 3 o’clock in the afternoon.[22] Ms C later told police that around two to three weeks before the Applicant had asked her if he could give the baby something to help her go to sleep, to which Ms C had replied “no”.[23] However, the police thought she was lying,[24] so I am not satisfied that this conversation occurred.
[18]    Exhibit A2, Medical Report of Dr Hogan dated 5 September 2016, page 4.
[19]    Exhibit R1, Supplementary material, page 213.
[20]    Transcript, page 21, lines 35 to 37.
[21]    Exhibit R1, Supplementary material, page 7.
[22]    Exhibit R1, Supplementary material, page 152.
[23]    Ibid, page 156.
[24]    Ibid, page 168.
Upon waking from her sleep, the baby screamed continuously and appeared to gasp for air.[25] Ms C called an ambulance. The Applicant did not reveal that he had given the baby OxyContin. He later told the police that he was afraid he would get into trouble and was worried about what his partner would say.[26] The Applicant told the Tribunal that:
“When [Child A] started acting badly after taking the OxyContin that’s where I hid it in my wardrobe up the top because I was very scared that, you know, I have done wrong, that’s the point where I knew I had done wrong and, you know, I didn’t want to get in trouble. I acted very immaturely and very scared”.[27]
[25]    Ibid, page 182.
[26]    Ibid, page 214.
[27]    Transcript, page 22, lines 17 to 21.
The Applicant did not tell Ms C or the paramedics that he had administered an OxyContin tablet. He conceded to the Tribunal that he had acted selfishly.[28]
[28] Transcript page 23, lines 38 to 43.
When the ambulance arrived, the baby was blue with very shallow breathing. Upon arrival at the hospital, she had a low level of consciousness, small pin-pointed pupils and she was not breathing. Her treating doctor suspected that she had ingested narcotics.[29] The Applicant told police that during the night he conducted Google searches about the effects of OxyContin on children and as a result sent a text to his partner suggesting that the baby’s stomach be pumped.[30] The police found such a text on Ms C’s phone.[31] The Applicant told the Tribunal “…after she was in hospital that’s when I searched up what the tablet was on the Internet and I just went like, oh, bugger, you know”.[32]
[29]    Exhibit R1, Supplementary material, page 161.
[30]    Ibid, page 214.
[31]    Ibid, page 168.
[32]    Transcript, page 22, lines 30 to 33.
In the meantime, hospital staff treated Child A with an opiate antagonist (antidote), Narcan, intravenously. Her condition started to improve until the Narcan started wearing off. In all, she required seven doses of Narcan in the emergency department and, on admission to the intensive care unit she was given Narcan via a drip. After 24 hours Child A had made a good recovery. Urine tests revealed a large quantity of Oxycodone and a trace of Oxymorphine in her urine.[33] Child A does not appear to have suffered any long-term damage to her health.
[33] Exhibit R1, Supplementary material, 166.
Oxycodone is an opiate. Other opiates include Morphine, Pethidine and Codeine. OxyContin is normally prescribed for severe pain but it is contraindicated for children less than 12 years of age. Its major side effects when ingested by infants are respiratory depression (slow breathing or cessation of breathing) and a narcotic effect leading to unconsciousness. If Child A had not been taken to hospital at the time she was, and correctly diagnosed, the likely outcome would have been her death.[34]
[34] Ibid.
The day after the Applicant had administered the OxyContin, he went to the hospital and found out that medical staff knew there were opioids in Child A’s system.[35] He was then interviewed by police. He initially denied any knowledge of how Child A could have ingested drugs. He told the Tribunal that the police questioned him three times in a period of two and a half hours, and in the end he could not lie anymore.[36]
[35] Transcript, page 24, lines 5 to 7.
[36] Ibid, lines 10 to 13.
When Child A was released from hospital, the Department of Child Safety Youth and Women (“DOCS”) put her in foster care. At that time the Applicant was remanded in custody. Ms C ended her relationship with the Applicant and went to live with her father.[37] After 17 days on remand the Applicant was released on bail. He ultimately pleaded guilty to grievous bodily harm - domestic violence offence and was sentenced to 3 years imprisonment with immediate parole.
[37] Transcript, page 24, lines 26 to 36; page 25, lines 11 to 15.
The learned sentencing Judge made the following comments in his sentencing remarks:
“… on the day in question…you took the child for a walk, and during that you administered through a bottle which you had previously prepared OxyContin in a crushed-up form to the child, which had, as the learned Crown Prosecutor outlined, catastrophic effects. The catastrophic offence - effects were that it was very much life-threatening. The child’s respiration was depressed to a very dangerously low level, and it was only because of the savvy of the medical staff at the hospital that the appropriate antidote Narcan was administered and serious effects were avoided.
During that period, you were asked on more than one occasion about anything that the child may have taken and you continued to deny any such conduct for a period of time, and that, of course, made the job of the medical staff harder. I’m sure you understand that now. But that was a particularly serious aspect of your tremendously negligent behaviour on that occasion. Had medical intervention not saved the child, the expert opinion is that the likely outcome would’ve been cessation of breathing due to - leading to cardiac arrest and the child’s death. Only a timely diagnosis and medical treatment prevented that tragic outcome. So this is enormously serious conduct.
In your favour, you did eventually, when, quite properly, pressured by the police, make admissions. You said, “I can’t take the guilt any longer. I did it. I gave her a crushed-up OxyContin. Stupid, stupid, stupid. I know”. But that only followed early false denials….You were only 22 when you committed the offence and you’re 23 now. You had a period of pre-sentence custody, only 17 days, but I’m given to understand, and I accept, that that relatively short period of two and a-half weeks or so had a salutary effect on you.
… You had problems in your schooling because of dyslexia and thus you didn’t achieve highly at school and found school to be very difficult, partly because of your size, and you also have low confidence and low self-esteem. According to your psychiatrist, Dr Hogan, you have a history of anxiety and depression and have seen a number of psychologists over the years. You at times have used cannabis heavily, even though you have no previous convictions. You have other health problems, including type I diabetes.
Dr Hogan’s assessment of you was that you don’t have a high IQ, and, in fact, his informal assessment of your intelligence was that you may be of borderline IQ, and that is certainly relevant to the massive error of judgement which is at the heart of this charge… As Dr Hogan correctly said, by any account, your act…can be viewed as reckless and stupid. His assessment of you was that you’re immature for your age, unsophisticated, and those features together with your borderline IQ, you were simply not well-equipped to be supervising a young baby…
At the time of the commission of the offence, your grandmother had died and you had lost your job and you were in significant financial hardship, and it is said that the baby was distressed on the day. I have discussed with the lawyers and analysed from the accepted statement of facts, that assertion is somewhat at issue between the parties, but it is not so vigorously in issue that, in my view, I have to attempt to resolve any factual contest, and I do act on the basis that, at least some time during that day when you did this enormously stupid thing, that the child had been crying. I described it during the submissions as a nutty experiment and it still has that character, whether or not the child had been crying.
What distinguishes your case from some of the other similar previous authorities is an entire absence of either any explosion of anger or rage or any intention to do any harm. Nevertheless, the offence of grievous bodily harm is about effects rather than your intention, and the potential effects without very competent medical intervention, which I compliment, were catastrophic, and, in fact, death was a likely outcome.
…
[38] Exhibit G1, G-documents, G17, pages 63 to 65.
I have regard to the maximum penalty for the offence, and it is a serious one. I have regard to the physical effects on the victim, although [redacted] eventually, with good medical intervention, made a complete recovery, or so it seems. I take into account the extent to which you are to blame for the offence, and in that exercise I take account of the personal handicaps that you suffer from. I take into account your character and in particular the fact that you have no criminal history and how much assistance you gave law enforcement agencies in the investigation of the offence. Eventually, when pressured, you did make frank admissions to police. I take into account the time you’ve spent in custody on remand for this offence.”[38]

One of the matters that I must assess is the risk of harm of the Applicant re-offending or engaging in other serious conduct. The most obvious risk is to children in his care. Therefore, it is necessary to consider the Applicant’s conduct in relation to children in his care since the offending. It is also relevant to consider the influence of Ms C on the Applicant’s behaviour as they both gave evidence that they intend to stay together.
By June 2016, Ms C and the Applicant had reconciled.[39] There was an incident in June when the police attended the caravan where the Applicant lived because of a drunken argument between the Applicant and Ms C, however there was no report of any violence or other inappropriate behaviour on the Applicant’s part.[40]
[39] Transcript, page 25, lines 30 to 34.
[40] Exhibit R1, Supplementary material, page 203.
There was another unplanned pregnancy[41] that resulted in the birth of a son, Child B, in May 2018. Ms C admitted to the Tribunal that she used cannabis regularly during this pregnancy. The Applicant said he did not think DOCS was aware of that.[42] DOCS monitored the situation with respect to Child B although he was not removed from the care of the Applicant and Ms C.[43]
[41]    Transcript, page 43, lines 39 to 43.
[42]    Transcript, page 44, line 3.
[43]    Exhibit A3, Applicant’s statement, paragraphs 15 and 16.
On 17 August 2018, Child A was reunified with the Applicant and Ms C, meaning they had primary care of her. At this time DOCS considered that Child A had a strong attachment to the Applicant and Ms C.[44] However, at this time, DOCS did not consider that the children could be left in the Applicant’s unsupervised care.[45] Ms C was responsible for supervising the Applicant.[46]
[44]    Exhibit R1, Supplementary material page 15.
[45]    Exhibit R1, Supplementary material, pages 1 to 11.
[46]    Exhibit R1, Supplementary material paragraph 15.
DOCS ultimately discovered that, following their reunification with Child A, the Applicant and Ms C were smoking a significant amount of marijuana and that, in order to do this, they were placing both children with Child A’s foster carer for significant periods. Indeed, there was a four week period between September and October 2018 when the children were with the foster carer most days. DOCS reported that the Applicant and Ms C had not been open and honest about their drug use and how often the children had been in the care of the foster carer. DOCS noted that: [47]
“It is of concern that in this case plan period [Ms C] and [the Applicant]’s marijuana use has escalated to daily, and that their safety plan of utilising [the foster carer] as a support person has resulted in [her] caring for [Child A] and [Child B] on a nearly full-time basis”.[48]
[47] Exhibit R1, Supplementary material, page 33 to 42.
[48] Exhibit R1, Supplementary material page 36.
Ms C told DOCS that their drug use was the result of them both feeling very stressed and finding their daily parenting tasks overwhelming. DOCS noted that by leaving the children with the foster carer, the Applicant and Ms C were following the safety plan, however, they were prioritising their drug use over their parenting duties.[49] In the hearing the Applicant gave evidence that this behaviour was mostly instigated by Ms C as she wanted to smoke pot.[50] Ms C’s evidence corroborated this.[51]
[49]    Ibid.
[50]    Transcript, page 28, lines 13 to 20.
[51]    Transcript, page 69, lines 11 to 12.
DOCS records include the observation that:
“…throughout engagement with Child Safety, [the Applicant] has consistently presented aggressive, frustrated and unable to regulate his emotions during conversations pertaining to [the children], and the child protection concerns”
and that:
“…despite continual recommendations and conversations regarding [the Applicant] addressing his emotional regulation issues, and concerns regarding his inability to control his anger outbursts, he continues to inadequately address this issue by not seeing a mental health practitioner consistently”.[52]
[52] Exhibit R1, Supplementary material, page 37.
In relation to that, the Applicant told the Tribunal that during meetings held within DOCS he “wouldn’t want a bar of them”, but since then he has “…come more towards the table to be more forthcoming and more involved in those communications”.[53]
[53] Transcript, page 29, lines 15 to 20.
Both children were placed with the foster carer in November 2018.[54] A Family Reunification Assessment report, dated January 2019,[55] noted that:
“[The Applicant and Ms C] have recently undergone a reunification process with [Child A] whereby she was reunified home on a full-time basis, however this failed and she was returned to care”.[56]
[54]    Exhibit A3, Applicant’s statement, paragraph 17; Exhibit R1, Supplementary material, page 29.
[55]    Exhibit R1, Supplementary material, pages 22 to 32.
[56]    Exhibit R1, Supplementary material, page 31.
That report also contained an observation that the Applicant had engaged with service providers on a superficial level to attempt to satisfy DOCS.[57]
[57] Exhibit R1, Supplementary material, page 38.
On 4 April 2019 the Children’s Court made child protection orders granting custody of Child A and Child B to the Chief Executive, DOCS for a period of two years.[58]
[58] Exhibit G1, G-Documents, G8, pages 43 to 44.
In August 2019, DOCS conducted a review in relation to Child B.[59] This review noted that despite a minor lapse in relation to drug use, the Applicant and Ms C were progressing well with their recovery. They had also “showed significant progression with their understanding of their illicit substance misuse on [Child A] and [Child B] and address their concurrent anxiety and depression”.[60]
[59] Exhibit R1, Supplementary material, pages 71 to 78.
[60] Exhibit R1, Supplementary material, pages 72.
Concerns were noted that a Parental and Cognitive Assessment had identified that the Applicant likely had Autism Spectrum Disorder (“ASD”) which raised concerns regarding his ability to “appropriately recognise the needs of his children and appropriately respond to their needs”.[61] The report stated that the Applicant:
“…was assessed as a parent able to care for his children’s needs however he does require the support of [Ms C] as a primary parent to appropriately enable him…[Ms C] will be the primary parent in the household for the children and [the Applicant] will ensure that he asks for [her] assistance for any significant decision with the children, including medication, playing outside, helping with injuries etc”.[62]
[61] Ibid.
[62] Ibid.
The Applicant and Ms C were subsequently permitted to spend blocks of time with the children. They had the children from 8am every Wednesday to 2pm the next day plus a half day on the weekend.[63] Child B was noted to enjoy time with the Applicant and Ms C and appeared to have a strong attachment to them.[64]
[63] Exhibit R1, Supplementary material, page 72.
[64] Exhibit R1, Supplementary material, page 75.
In September 2019, after a three month period of abstinence, the Applicant and Ms C commenced using marijuana multiple times a week. The Applicant told DOCS that Ms C is a trigger for him as when she wants to use marijuana he will give into it.[65]
[65] Exhibit R1, Supplementary material, pages 80 and 85.
A DOCS report conducted in October 2019 stated that:
"Despite multiple program completions [the Applicant and Ms C] have failed to appropriately meet case planning goals with the department. [The Applicant and Ms C] have engaged with a broad range of professional support networks however and significant point of weakness for the family is their personal support network within their family and friends. [They] have stated that they do not have anyone apart from [the foster carer] with whom they can reach out and obtain support.”[66]
[66] Exhibit R1, Supplementary material, page 86.
The report also stated that the Applicant:
“…understands that sometimes he is unable to make an appropriate decision that meets the children’s needs and this is something that [he] will need to continued (sic) to be supported in (sic) by [Ms C] and the Department.”[67]
[67] Exhibit R1, Supplementary material, page 85.
The report noted that the Applicant’s and Ms C’s home was appropriately furnished to meet the children’s basic needs, and that during home visits the home was always clean and appropriate for children with cupboard locks and plug covers.[68]
[68] Exhibit R1, Supplementary material, page 83.
In April 2020 DOCS completed a Family Reunification Assessment[69] that assessed the risk level as “high” although it noted that the Applicant and Ms C had made some progress.[70] In a Review Report, dated April 2020, it was noted that the Applicant and Ms C had elected for the current foster parent to be the long-term carer for their children if they were not able to fulfil that role. The foster parent also expressed that she would be willing to care for the children on a long-term basis.[71]
[69]    Exhibit R1, Supplementary material, pages 107 to 117.
[70]    Exhibit R1, Supplementary material, page 107.
[71]    Exhibit R1, Supplementary material, page 125.
The report noted that:
“Through observations and conversations during home visits, [Child B] is observed to love his mum and dad and be excited to go to contact as well as sad leaving contact. In saying that, it has been observed that [he] is comfortable in his current placement and has a secure attachment with his current foster carer as it has been observed that [he] will go to his carer when he is needing emotional or physical support, such as hurting [himself] or having [his] feelings hurt.”[72]
[72] Exhibit R1, Supplementary material, page 119.
It was noted that on occasion when a phone call was made to Ms C, she would be at the doctors while the Applicant was alone with the children, and that there had been many conversations with her about the expectation that she would be around at all times during contact with the children. Ms C gave evidence that she was actually at the shops.[73] The Applicant said Ms C had gone to the shops for 10 minutes, leaving him unsupervised with the children, but they had asked a neighbour to keep an eye on him (the Applicant) and the neighbour did.[74] Ms C, however, said that when she returned the neighbour was no longer there.[75]
[73]    Transcript, page 68, lines 25 to 28.
[74]    Transcript, page 13, lines 26 to 32.
[75]    Transcript, page 68, lines 28 to 30.
DOCS had previously been aware of the Applicant leaving Child A alone in a hospital room[76] and occasionally leaving a room when he felt overwhelmed, agitated or frustrated as a way of calming himself down. DOCS was concerned that he might do that when his children were in his unsupervised care. The Applicant told the Tribunal on a few occasions when he has been supervising his children he has left the room for a minute or two to collect his thoughts but he first makes sure they are in a safe and stable location.[77]
[76] Child A had been in the care of her foster carer when she was taken to hospital.
[77] Transcript, page 30, lines 12 to 20.
The report also noted that the Applicant had undergone a Parental Capacity Assessment that had found that he was able to meet the basic needs of the children but was “unable to recognise, and therefore meet, their emotional and social cues”,[78] and it was recommended that he should, therefore, never be a primary parent and would need someone to be around as the primary parent when he had the children.[79]
[78] Exhibit R1, Supplementary material, page 121.
[79] Ibid.
As recently as 18 March 2020 the Applicant was found to have cannabinoids in his urine. He advised DOCS at that time that he had gone “cold turkey” in March. The Applicant admitted to the Tribunal that, in relation to his use of cannabis, he had lapsed many times during the period of reunification.[80]
[80] Transcript, page 26, lines 45 to 47.
There are no reports of either child suffering harm when in the care of the Applicant and/or Ms C, or of either of them using drugs with the children in their care.
I accept the evidence in the contemporaneous DOCS records and where there is any inconsistency between that evidence and evidence given by the Applicant or Ms C, I prefer the DOCS evidence.
Apart from some minor traffic infringements,[81] the Applicant has no other criminal history.[82] He does not currently hold a drivers licence due to his diabetes.[83]
[81]    Transcript, page 36, lines 24 to 31.
[82]    Exhibit G1, G-Documents, G16.
[83]    Transcript, page 36, lines 36 to 41.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration A, paragraph 9.1(1) of the Direction compels decision-makers to have regard to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 9.1(2) of the Direction requires decision-makers to give consideration 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.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 9.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant, for present purposes, are:
(a)…
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)…
(e)…
(f)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(g)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(h)The cumulative effect of repeated offending;
(i)…
(j)…
(k)…
I am satisfied, as the learned sentencing Judge was, that the Applicant did not intend to harm his child when he administered the OxyContin. Crimes that cause physical harm are generally regarded as crimes of violence. However, although Child A’s life was put at risk, it is not apt to characterise the Applicant’s offending conduct as violent. The harm was caused by the administration of a drug that the Applicant did not realise was toxic to Child A. I am not satisfied that this was a crime of a violent nature against a child.
I am, however, satisfied that it was a crime committed against a vulnerable member of the community. There could scarcely be anyone more vulnerable than a two month old baby, and the greatest obligation to look after and protect a child falls on his or her parents. Child A does not appear to have suffered any lasting harm. However, she was in mortal peril for some hours due to the Applicant’s extreme foolishness. In those crucial hours, the Applicant was in a position to help her by revealing what he had done but he chose not to because he was afraid of the consequences for himself. This was deliberate conduct, albeit driven by fear and immaturity.
The learned sentencing Judge imposed a sentence of three years imprisonment despite accepting that the Applicant did not intend to harm his child and that he had some handicaps that meant he was not equipped to care for a baby. Even in those circumstances, His Honour considered the offending serious enough to warrant such a sentence of three years imprisonment.
Taking these factors into account, the offending is serious.
Apart from this crime, some minor traffic infringements, and presumably possession of cannabis (of which he has never been convicted), the Applicant has lived a law-abiding life.
The medical staff who treated Child A did not detect any signs of long-term ingestion of narcotics and concluded that the incident was a one-off. Therefore, there is no frequency whatsoever to the Applicant’s offending and, consequently, there can be no cumulative effect of repeated offending.
I do not consider the remaining factors (a), (d), (e), (i), (j) or (k) of paragraph 9.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 9.1.1(1) of the Direction, in their totality, lead to the conclusion that the offending is serious.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 9.1.2(1) provides that in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm 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 9.1.2(2) provides that in considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.available information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decision should not be delayed in order for rehabilitative courses to be undertaken).
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Respondent, having been asked to assist the Tribunal with respect to paragraph 9.1.2(2)(b)(i), helpfully submitted that the nature of harm was connected to the risk that the Applicant could make more poor decisions in the context of his problems with cannabis, such as leaving a child unattended or, in relation to the broader community something like driving under the influence of drugs.[84] Given the Applicant does not drive, I consider the risk of drug-driving to be remote. I appreciate that drug-driving was given only by way of an example of a risk to the broader community. However, I find the exercise of identifying risks to the broader community to be speculative in this particular case. To my mind, the evidence does not disclose a readily apparent risk of any type of offending or serious conduct other than negligent conduct in relation to the care of a child. Therefore, the nature of harm were the Applicant to engage in further offending or other serious conduct is very specific in this case, and limited to harm to a child in the Applicant’s care by some sort of misadventure. I add that to qualify as serious or criminal conduct the negligence would have to be to a reasonably high degree such as, by way of example, leaving a child to fend for itself where there is a readily apparent hazard such as a nearby body of water, busy road, toxic substance or accessible cigarette lighter. As the offence in this case demonstrates, it could also include administering a toxic substance to a child. The consequences of such serious negligence include physical harm and even death.
[84] Transcript, page 95, lines 33 to 47 and page 96, lines 1 to 29.

The Applicant said that he does not plan to have any more children. He said Ms C has “the bar in her arm” (referring to long-term contraception) but that it is causing her problems, so he hopes to get a vasectomy.[85] Ms C said she does not plan to have any more children at least not until she gets Child A and Child B back.[86] Accordingly, the risk that they could have another child in their primary care in the foreseeable future seems low.
[85] Transcript, page 47, lines 1 to 10.
[86] Transcript, page 69, lines 36 to 41.
The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
The Applicant has been in the community since he was sentenced. He has not been convicted of any subsequent offence. Nor is there any evidence that a child has been harmed in his care, or that he has put any child in his care at risk of identifiable harm. I note, however, that he has not had a child in his sole care except for some brief periods that were mere minutes long.
I have the benefit of independent expert evidence as to the Applicant’s risk of re-offending in the form of two medico-legal reports, and oral evidence, from Dr Hogan.
On 2 August 2016, Dr Hogan examined the Applicant and he subsequently produced a report.[87] He noted that the Applicant suffered from severe dyslexia, and had a history of anxiety and depression for which he had seen a number of psychologists over the years. The Applicant told Dr Hogan that he had intermittently used cannabis over the years to help control his anxiety and fear. He reported that he thought his cannabis use had negatively impacted his ability to think clearly and form judgement and that it “definitely screwed with my head”. He told Dr Hogan that he “intends to never ever use cannabis again”. Dr Hogan administered a urine test after the interview which was clear. Dr Hogan administered the PCLR-20 test to ascertain the Applicant’s risk of re-offending and found that he had a low score, indicating a low risk. I will address this test in more detail in relation to Dr Hogan’s more recent report.
[87] Exhibit A2 Medical report of Dr Hogan dated 5 September 2016.
Dr Hogan considered that the factors that contributed to the Applicant’s offending were immaturity, borderline IQ, the stress and trauma of the death of his grandmother and losing his job and consequent financial hardship, and that the Applicant was not in a good position to be supervising a young baby who, at the time, was distressed and crying.[88] Dr Hogan noted that while the Applicant denied having used cannabis in the 24-hours prior to the offence, there would still have been reasonable amounts of cannabis in his body fat and physical system. Dr Hogan accepted that the Applicant genuinely believed that giving the OxyContin to his baby would help her. He did not think there was any malice or intent to harm the baby. He described the Applicant’s conduct as “a risky and very poorly thought out impulsive act that could have led to far greater consequences”.[89]
[88] Ibid, pages 9 and 11.
[89] Ibid, page 10.
Dr Hogan observes that “Cannabis can have a significant effect on judgement and drive and with all of the above symptoms described would have further contributed to poor decision making”.[90] He noted that the Applicant had been abstinent from cannabis for the last seven months, although it is not apparent if he had any independent evidence of that apart from the urine test that was carried out on the day of the examination.
[90] Ibid.
Dr Hogan recommended that the Applicant continue to attend drug rehabilitation and see his Psychologist for treatment of his underlying anxiety disorder. He noted that staying abstinent from drugs would improve his chances of rehabilitation.
Dr Hogan interviewed the Applicant and Ms C on 18 May 2020. He noted that the Applicant undertook a urine test on 7 May 2020 which was clear. He told the Tribunal that because marijuana is fat-soluble it can show up in a test for up to six weeks after use has stopped.[91] Dr Hogan administered the PCL-R Psychopathy Checklist and the Violence Risk Appraisal Guide “VRAG” risk assessment tools to the Applicant. The Applicant scored very low on both tests indicating a very low risk of re-offending. Dr Hogan stated that the PCL-R has been proven to be a good predictor of violence across diverse populations, and the VRAG involved a mathematical technique applied to determine what factors were present in offenders who go on to commit violent crimes. The VRAG has been examined in over 40 studies and been found to be an effective and reliable tool, including in relation to people who have a lower IQ.
[91] Transcript, page 55, lines 5 to 11.
Dr Hogan explained that the PCL-R measures psychopathy in people, which he described broadly as the ability to feel remorse and empathy: a high score generally means a person has a poor ability to form remorse and lacks empathy.[92] Dr Hogan said in terms of remorse the Applicant had expressed many times that he done a stupid thing, and he did not feel that the Applicant lacked empathy, saying "he’s certainly not callous".[93] When Dr Hogan was asked how those tools, that assess psychopathy and risk of violent crime, could indicate the risk that the Applicant would act recklessly or negligently but without any intent to harm, he said the following:
“I mean, that’s the sort of standard stuff you would use if you were assessing.… Predictions a very difficult thing. But this, at least, on other studies, is certainly a very reliable and fairly high predictive ability to assess reoffending. Now it’s called the Violence Reoffending, but what he’s done is a sort of violence. I mean, he’s committed an act that has endangered a child. So that’s a serious risk of violence - or a serious act of violence. So I guess that’s what we’re trying to use. And I - you know, it’s a sort of standard thing that you would do in any assessment… I guess all you can do with those things is to mitigate risk, can’t you. I mean in this case, the children are in ongoing care and more likely to continue in ongoing care after April 21. I guess they’re the things that you look at with, you know, you try to mitigate factors, don’t you.”[94]
[92]    Transcript, page 56, lines 34 to 46.
[93]    Transcript, page 57, line 30.
[94]    Transcript, page 59, lines 6 to 37.
While I accept that Dr Hogan considers the two tests that he administered to be relevant to the Applicant’s risk of re-offending, and he has a great deal of experience and expertise in his field, it is difficult to see how these tools are entirely appropriate to assess the risk that the Applicant will engage in behaviour similar to the offending behaviour. It is, however, significant that the Applicant was assessed as having a very low risk of psychopathy and violent offending, and that in Dr Hogan’s opinion the Applicant does not lack empathy. I accept Dr Hogan’s expert opinion in relation to these matters.
Dr Hogan told the Tribunal that “over the years I’ve had a lot of experience with child therapy, both treating – both treating, sort of, parents of these sort of children, but also dealing with Child Services”[95] and his opinion was that it was unlikely that the Applicant and his partner would be given primary care of their children, at least not for “quite some time”[96].
[95] Transcript, page 60, lines 1 to 4.
[96] Transcript, page 59, lines 39 to 46.
Dr Hogan gave evidence, consistent with his earlier report, that he considers the Applicant to be quite immature for his age.[97] He explained that the combination of dyslexia and immaturity is often associated with a high risk of depression and anxiety, and that people with anxiety tend to gravitate towards cannabis because it tends to stop their anxiety.[98] Dr Hogan further said that people with dyslexia have a higher risk of having “some sort of Asperger type presentation” which he said was “a mild autism” and that the Applicant fitted some of the criteria.[99] When asked if this would impact on the Applicant’s ability to abstain from cannabis and parent his children, Dr Hogan said:
“Look, as I said in my remarks right at the beginning, you know, people mature over time. If you look at the frontal lobe, the frontal lobe is basically a very huge lobe that governs our personality, but also governs such things as control of emotions and judgement. Now, you know, it’s very common, you know you see a lot of criminals who, you know, when they’re young, will keep offending. But as they get older, they don’t. And - well they become less of it. And it’s not to say there’s no old criminals, but as a general rule, you know, as the frontal lobe matures, generally they become, you know, easier people. They become, you know, they’re more able to slow that time between the event and the action, you know. Which is always the case.”[100]
[97]    Transcript, page 51, lines 1 to 7.
[98]    Ibid, lines 25 to 30.
[99]    Transcript, page 61, lines 17 to 24.
[100] Ibid, lines 27 to 37.
Dr Hogan said that in males it is thought that the maturing process happens from the late 20s and early 30s onwards.[101] The Applicant is 27 years old.
[101] Transcript, page 62, lines for 5 to 6.
When asked if the Applicant’s use of cannabis could impact on his ability to parent his children, Dr Hogan opined that it could in the sense that a parent has to be alert because of the risks of misadventure and that cannabis impairs decision-making “like any intoxicant”.[102]
[102] Ibid, lines 26 to 47.
I take from Dr Hogan’s evidence that any risk that the Applicant will engage in further negligent conduct that could endanger a child arises from his immaturity, limited intellectual capacity and his use of cannabis (which is precipitated by his anxiety). To date, the Applicant’s engagement with the numerous service providers that were made available to him to assist him in relation to his drug use, psychological problems and parenting skills has been superficial and inconsistent. I see this as a manifestation of his immaturity rather than indicating lack of remorse. The Applicant knows he made a grave mistake. He knows he nearly killed his daughter. He has spent time in custody, temporarily lost his partner and been convicted of a serious offence. When giving evidence about the offence in the hearing, over four years afterward, his shame and distress was palpable, and I do not believe it was contrived. Similar observations were made by a Mr Tim McIntrye, Counsellor, who interviewed the Applicant three times between March and May 2016,[103] and by Dr Tom Hogan, who interviewed the Applicant in 2016[104] and 2020[105].
[103] Exhibit R1, Supplementary material, page 7.
[104] Exhibit A2, Medical report of Dr Hogan dated 5 September 2016.
[105] Exhibit A5, Medical report of Dr Hogan dated 20 May 2020, page 4.
Another factor that influenced Dr Hogan’s risk assessment was his prediction that DOCS would remain involved. When Dr Hogan was asked if he thought the Applicant would do something similar to his prior offending if he and Ms C had a day of unsupervised care, he said:
“I guess what I would say, no. Knowing how much this has hurt him, and it has, I think it has genuinely changed him, you know. I think he would need to be, you know, off cannabis. But that is a, you know, I think that that is a - I personally can’t see that the Family Services will make that judgement in the near future. I don’t think they will.”[106]
[Underlining added]
[106] Transcript, page 63, lines 15 to 24.
He added:
“Prediction is very difficult. But I would have thought that it was low. If I had to, you know, if I had to nail my colours to the mast, I would have to say it’s low. I can’t say it’s zero percent. I can just say it’s low. Because no one can give you zero percent.”[107]
[107] Ibid, lines 29 to 33.
I note that Dr Hogan did not have the benefit of any of the DOCS reports when preparing his risk assessment. Those reports show that the Applicant and Ms C have had unsupervised care of their children and the Applicant has not administered any medication or dangerous substance to either of the children. However, the point I take from Dr Hogan’s evidence is that he considers the involvement of DOCS to be a necessary protective factor.
On the evidence before me, it seems unlikely that DOCS will give the Applicant and Ms C primary care of the children in the foreseeable future. However, they have had unsupervised access to the children before and they may have that again once the COVID restrictions are eased. It is, therefore, necessary to consider the Applicant’s unresolved issues with cannabis and the role of Ms C.
In terms of the Applicant’s use of cannabis, he said:
“My problem with pot is an ongoing addiction. I know I have a problem. I’ve had it ever since I left my home, from my parents back in the early years. It’s going to be an ongoing fight but I am seeking to better myself and stop the use of pot. I just – it’s a disgusting habit, you know. Some days I take two steps forward. Next minute I take a step back. It’s the social circles I made when I was young and continue to make… I want to be a better father; a better person; as good as I can be. I’m regretful for all the actions I’ve taken for this. I just want to be there for my children. I think so badly of the times that I would neglect any duties for them, for selfish needs, and I just hope to be there with my family.”[108]
[108] Transcript, page 12, lines 35 to 47.
The Applicant claims that the last time he used cannabis was on 3 March 2020 before going on holiday to visit his parents.[109] He returned a clean drug test in 7 May 2020. However, he has given up before and then returned to it. He told Dr Hogan in 2016 that he would never use cannabis again, but he did, many more times. The Applicant said that he thinks he and Ms C both trigger the other to use cannabis.[110] However, he also said that they rely on each other to avoid smoking cannabis, for example, Ms C would ask and he would say no or he would ask and she would say no.[111] He told the Tribunal that he and Ms C were thinking about doing couples counselling in two months to address the fact that they trigger each other.[112]
[109] Transcript, page 35, lines 38 to 42.
[110] Transcript, page 41, lines 23 to 29.
[111] Transcript, page 39, lines 33 to 37.
[112] Transcript, page 41, lines 31 to 40.
The Applicant gave evidence that his mother has offered to pay for him to have psychological treatment. He had not taken up that offer in the past, although he said he now realises that by doing that he was “digging a bigger hole” for himself.[113] He has arranged for a psychologist to test him for ASD in late June or July because he is able to have it subsidised on a mental health care plan.[114] I am satisfied that there is a reasonable chance that the Applicant will follow through with psychological treatment.
[113] Transcript, page 43, lines 26 to 34.
[114] Transcript, page 34, lines 38 to 47.
Ms C gave evidence that she, too, has abstained from using cannabis since 3 March 2020.[115] When asked what she would do differently to stay off cannabis this time, Ms C said:
“At the moment, like, where staying strong for the kids. Every time it comes up, we think of the kids. And we know that if we stuff up one more time, we lose these kids for good. I already have one daughter who is under an 18 year guardianship - I can’t have another two…if the kids were to return home, I have kind of figured out like, sort of, a bit of a safety plan around what we can do differently to stay off of them. To stay off the drugs, sorry.”[116]
[115] Transcript, page 67, lines 13 to 15.
[116] Transcript, page 69, lines 14 to 21.
She explained the safety plan as:
“Like, I will get out of the house more with the kids. It was being at home all the time with the kids, board, the kids are bored, they’re nagging me. Um, and - and that’s my plan is to get out of the house, go to playgroups and libraries and visiting my grandparents and taking them to the park, those type of things. Um, so then we’re not sitting at home bored. And to remain off the drugs, I’m trying to do what I have been advised by these courses to do.”[117]
[117] Transcript, page 74, lines 10 to 19.
I have some concerns about the reliability of Ms C’s evidence in general. The police that interviewed her after the incident believed that she was being untruthful about certain matters including her claim that there was no medication in the house.[118] She told the Tribunal she thought the police meant baby medication[119] which I find implausible. There is also a record that in late January 2016 Ms C’s father reported to DOCS that Ms C is “such a terrible liar” and that “she has deceived everybody, even Child Safety”.[120]
[118] Exhibit R1, Supplementary material, page 168.
[119] Transcript, page 73, lines 17 to 20.
[120] Exhibit R1, Supplementary material, page 164.
However, Ms C is of the understanding that if she is caught using drugs one more time, she will not have care of her children until they are 18 years of age and this appears to have made an impression on her. As she said in the hearing “We got a real kick up the bum when Child Safety said that you stuff up one more time and you don’t get your kids home…If you smoke you know any more drugs or…you come back with a dirty drug test, you won’t get your kids until they’re 18”.[121]
[121] Transcript, page 74, lines 30 to 44.
I accept that both the Applicant and Ms C appreciate the gravity of the situation, and that they are currently good influences on each other in terms of abstaining from cannabis use, however, given their history, I am satisfied that there is at least a moderate risk that the Applicant will relapse or that Ms C will relapse and this will cause the Applicant to relapse. Also, based on their past behaviour, I am satisfied that there is a low risk that they will use cannabis around their children or that they will have care of the children when affected by cannabis.
In terms of general parenting ability, the Applicant appears to know his limitations. One of the concerns of DOCS was that he sometimes felt agitated and left the room to cool down. In response to a question about what he would do if he started feeling agitated while supervising his children, with the example that something gets broken or one of the children puts Vegemite on the TV or similar, the Applicant said:
“I would get down on my knee, come down to their height and ask if they’re okay, what was wrong, and then I would get [Ms C] to come and assist me, you know, ‘Can you look after [Child B] for a minute’ while, you know, I vent for a bit, and then I can clean up, you know, try and take them away from the affected area and then take more of a mature approach to it.”[122]
[122] Transcript, page 31, lines 17 to 24.
The Applicant’s answer shows that, at the very least, he knows how he should behave in such a situation. Presently, DOCS does not trust him to have unsupervised care of his children and he will have to earn that trust.
It may seem unusual to assess the Applicant’s risk of re-offending taking into account the intervention of a Government body, however, the Tribunal’s task is to assess the risk according to the facts. The facts are that the Australian community values children enough to create government bodies whose task it is to protect children from harm and neglect, and in this case the responsible government body is performing its function effectively and will likely continue its involvement in the lives of these two children.
Over-all, and particularly taking into account Dr Hogan’s evidence and the involvement of DOCS, I am unable to find more than a very low risk that the Applicant will cause harm to a child through criminal or other serious conduct. Further, given his extreme regret for giving his daughter the OxyContin tablet, I am satisfied the risk that he will administer medication or another drug to a child in his care to be non-existent.

While the possibility that the Applicant and Ms C will achieve primary care of their children and DOCS will no longer be involved seems remote, for completeness, I will briefly address it. The Applicant’s parents have encouraged him to move his family to Adelaide once the issues with DOCS are resolved as they think Ms C’s family in Queensland are “not as supportive as what [the Applicant’s] family could be.”[123] The Applicant’s mother told the Tribunal that she would love to help look after the children and would very much like the family to move to Adelaide for that purpose.[124] The idea of moving, and transferring to the supervision of the appropriate South Australian agency, was floated two or three years ago but DOCS was not in favour of it because of the bond the children had with their carer. In the hearing Ms C was asked if she would be agreeable to the family moving to Adelaide under an arrangement with DOCS and the South Australian government and she said she was.[125] While that option seems remote given the position previously taken by DOCS, the evidence does indicate that, in the event that the Applicant and Ms C are given primary care of the children, they have a ready and willing support network that they are prepared to call on.
[123] Transcript, page 45, lines 6 to 15.
[124] Transcript, page 79, lines 1 to 10.
[125] Transcript, page 90, lines 1 to 2.
Conclusion: Primary Consideration A
The Applicant’s offence was very serious, although he meant no harm. The nature of the harm from further offending could include injury or death by some kind of misadventure. However, the risk of further offending is very low. Therefore, Primary Consideration A weighs only moderately in favour of exercising the power to cancel the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 9.2(1) of the Direction compels a decision-maker to make a determination about whether cancellation of the Applicant’s visa is, or is not, in the best interests of a minor child who may be affected by the cancellation.
Paragraphs 9.2(2) and 9.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to cancel the Applicant’s visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the non-citizen, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·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;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child;
·evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Child A is 4 years old. Child B is 2 years old. The children appear to be in a safe, stable environment with a carer with whom they each have an emotional bond, and they are together.
I have found that there is a very low risk that the Applicant will re-offend or engage in other serious conduct that harms a child in his care.
In his submission to the Respondent, the Applicant said that if he was required to leave Australia his partner and two children would leave with him. By the time of the hearing he had changed his position on that. Given the Court orders made in April 2019, it would seem impossible for the Applicant and/or Ms C to take the children out of Australia. Ms C provided a statement to the Tribunal in which she said she could not leave her children here and, therefore, would not go with the Applicant to the United Kingdom.[126] Accordingly, I will address this primary consideration on the basis that, if the Applicant is deported, Ms C and the children will remain in Australia.
[126] Exhibit 4, Ms C’s statement, paragraph 21.
Several of the factors listed above weigh against the Applicant because of his crime and its consequences: he committed a crime of negligence that negatively impacted Child A by causing physical distress and respiratory failure, and this resulted in Court orders that limited his contact with her and gave primary parental responsibility to a foster parent. I do not consider that he has abused or neglected either of the children.
On the evidence before me, I can only realistically consider the Applicant’s potential to play a positive parental role in the future in the context of him being a secondary carer.
The Applicant and Ms C were looking after the children unsupervised at their home twice per week – for four hours and then two hours - until the COVID restrictions started.[127] They are currently spending supervised time with the children for two hours per fortnight.[128]
[127] Transcript, page 13, lines 23 to 26; page 31, lines 39 to 44.
[128] Transcript, page 32, lines 1 to 7.
In his statement[129], the Applicant said, in relation to his children:
“…I play with them, read to them, help them to say words, basic counting, recognising colours, we give them food, we avoid processed food, they always get fresh food. We never miss an allocated time unless the children are sick… I know I have failed [Child A] but I will do my very best to help her in the future and be a father for her…[The children] are as happy to see me as I am happy to see them. I speak to both of them every day through WhatsApp…We have wonderful conversations. But it is nothing like the times when we are together in person…. I appreciate it is a long road for me to try and re-establish myself as a responsible parent...”
[129] Exhibit A3, Applicant’s statement.
In Ms C’s statement[130], she said:
“… I understand that [the Applicant] will not be allowed to be with [Child A] unsupervised for a very long time. I appreciate it may never happen before [she] turns 18… When the four of us are together… we have a wonderful time together. I watch [the Applicant] play with both children…and I love seeing how they respond to him so well. I feel very much if [the Applicant] was separated from the two children. [He] went to South Australia for 10 days and [Child A] kept asking where [he] was. The Department of Child Safety closely control how and when we have contact with [the children], both [the Applicant] and I are very willing to co-operate (sic) the Department…”
[130] Exhibit A4, Ms C’s statement.
In her evidence, she said:
“[The Applicant] likes to make food for them; he likes to change their nappies; he loves to give them above; play with them; and, you know, do all the reading of the books; and the learning kind of thing…”[131]
[131] Transcript, page 70, lines 37 to 42.
Ms C said she thinks the Applicant has matured since the offending, that he is truthful with her and that he adores the children.[132] She gave details of the current arrangement for spending time with the children. She said:
“At the moment, I can be in and out. Like, if the kids are at home at the moment, I would be allowed to be in and out. As long as I’m around and I’m there for if he needs, and if the kids need, then yes, he’s fine to kind of do it. I just be popping me head in and out.”[133]
[132] Transcript, page 71, lines 37 to 44.
[133] Transcript, page 70, line 43 to page 71, line 2.
The Applicant’s mother, in a letter of support,[134] said:
“I have done my best to keep contact between us with twice yearly visits to see [the Applicant] and the children, we keep in touch regularly by telephone and more recently video chats so that I can be a constant in their lives and a support system. I am happy to support them and would be happy if the family relocated back to Adelaide so that my husband and I could help with the responsibilities of raising the children. I love these children dearly and fear that without [the Applicant] in their lives that [Ms C] could not cope alone and they would remain in the care system…”
[134] Exhibit A6, Letter of Applicant’s mother.
The Applicant’s mother gave evidence that she visits the Applicant twice a year, staying in her own accommodation and visiting them regularly. She has observed that the Applicant is very good with Child A and that Child A is very attached to him. She described the Applicant as being very patient with the children.[135]
[135] Transcript, page 77, lines 7 to 19.
Dr Hogan provided his second report, knowing that the Applicant was facing deportation. He said the following:
“Despite the rocky start to his parenting, [the Applicant] does love his children. Deportation will mean that he will not have access to them for many years and they will not get to know him. He will not be able to come back to Australia and it is unlikely that his partner [Ms C[ will have the resources to fly them over there to see him. I have questioned both [the Applicant] and his partner closely about his relationship with his children. It is clear that [the Applicant] is close to his children and from what I understand they are very close to him. I must stress from all my work with patients over thirty years as a Psychiatrist and earlier as a General Practitioner that I firmly believe that the bond between child and parent is paramount and must be protected and preserved where possible. Over the years I have seen patients who have been adopted who go to enormous lengths to find their biological parent and rekindle a relationship with that parent even decades later.”[136]
[136] Exhibit A5, Medical Report of Dr Hogan dated 20 May 2020, pages 6 and 7.
Dr Hogan confirmed that he had not interviewed the children.[137]
[137] Transcript, page 60, lines 35 to 40.
I accept, based on the evidence from DOCS, the Applicant, Ms C and the Applicant’s mother that the Applicant is a positive presence in his children’s lives and that they each have an emotional bond with him.
The Applicant gave evidence that the carer with whom his children live is a single lady who also has two of her own children in the home, being a daughter who has Down Syndrome and a son. She also has two adult children who live out of home. The Applicant does not think the carer spends much time with his children, for example, he said she does not read them bedtime stories, and he thinks Child B is very withdrawn in that home. He said the carer puts Child A in daycare five days per week and Child B in daycare four days per week, from 9am to 5pm, which he does not like as he feels the hours are too long. He said the carer is a lovely lady who does the best she can.[138]
[138] Transcript, page 42, lines 8 to 28.
I am satisfied that the children are well cared for in their current environment and that they have a healthy bond with their carer who also has two other children to look after. I am satisfied that the involvement of the Applicant and Ms C in the children’s lives is contributing to their wellbeing in that the Applicant and Ms C provide additional individual attention and physical affection. I am satisfied that, in the role of a secondary caregiver, the Applicant has, since each child was born, fulfilled a positive parental role in relation to that child, and that he will continue to do so within the limits set by DOCS. Given the young ages of both children, there is significant potential for the Applicant to continue to be a positive influence in their lives. I am satisfied that the benefit to the children in having the Applicant present in their lives outweighs any risk that he poses to them.
The primary parental role is currently fulfilled by the children’s foster carer and that looks likely to continue as she has expressed willingness to provide long term care and the Applicant and Ms C have expressed a preference for her to do so if they cannot have primary care of the children. Further, Ms C is able to continue to fulfil the role of a secondary caregiver if the Applicant is deported. Even so, it would be better for the children to have the Applicant remain physically present in their lives, to the extent that he can under the supervision of DOCS.
Ms C’s goal is to have primary care of the children.[139] That seems unlikely in the foreseeable future, however if it does occur, it will be as a result of an assessment by DOCS that such an arrangement is suitable, and the Applicant and Ms C have the ready support of the Applicant’s parents available to them.
Conclusion: Primary Consideration B
[139] Transcript, page 69, lines 23 to 25.
I am satisfied that it would be in the best interests of Child A and Child B not to exercise the power to cancel the Applicant’s visa. This Primary Consideration carries moderate weight in the Applicant’s favour.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 9.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[140]
[140] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
The Applicant has certainly breached the trust of the Australian community, which does not tolerate the abuse of children, however, this was not deliberate abuse, and nor was it repeated or ongoing. The Applicant made a very foolish and misconceived attempt to calm his baby, then he tried to cover it up out of self-preservation. He was 22 years old at the time and immature for his age, with a low IQ and possible ASD. He was not equipped to care for a baby, he suffers from long-term anxiety, and he resorted to drug use to cope. The real moral failing in his conduct it was his silence after Child A became sick. My impression is that he confessed to what he had done because of the tenacity of the police. However, since that time he has accepted that he acted selfishly. Further, he has not sought to make excuses or to shift or spread responsibility for his actions. I am satisfied that he feels extreme remorse.
In assessing the weight attributable to Primary Consideration C, I have regard to the those matters and to the following matters:
·the Applicant’s family moved to Australia when he was six years old. He has been here for over three-quarters of his life;
·he suffers from dyslexia, is probably on the Autism scale, and he has a low IQ. His intellectual difficulties and small stature led to him being bullied at school. He suffers from low confidence, depression and anxiety. He has Type 1 Diabetes;
·he committed the offence 16 years after arrival, when he was 22 years old;
·the offence he committed is serious;
·he has been in the community for over four years since the offence without any further convictions, although he has unresolved issues with cannabis;
·there is a low risk that if he is returned to the wider Australian community he will re‑offend or engage in other serious conduct that would cause harm to members of the community;
·he has had limited employment, however, he has done some voluntary work (detailed in Other Considerations); and
·his absence from Australia will have a significant negative impact on Ms C. As I have concluded in relation to Primary Consideration B, his absence from Australia is not in the best interests of his children.
Conclusion: Primary Consideration C
Taking all of the above matters into account, I am unable to find that the expectations of the Australian Community favours cancellation of the Applicant’s visa. Primary Consideration C is neutral.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 10 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not made any claims relevant to this Other Consideration, nor do any arise on the evidence. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia since the age of six. He committed the offence at the age of 22, some 16 years after his arrival. On account of his youth when he relocated, the time he has been here, and the fact that he did not commit the offence soon after arriving in Australia, he is entitled to some measure of weight in his favour under paragraph 10.2(1)(a) of the Direction.
The Applicant has had little employment. However, he has done some voluntary work for Meals on Wheels as part of a hospitality course he undertook in South Australia, he has participated in Clean Up Australia Day since 2012 (missing out a few years), he and Ms C always donate presents to the Kmart Christmas tree, and they donate pet food to the RSPCA.[141] This is admirable given the Applicant’s and Ms C’s very limited means. The Applicant is entitled to a measure of weight in his favour pursuant to paragraph 10.2(1)(a)(ii) of the Direction.
[141] Transcript, page 37, lines 1 to 44.
With respect to paragraph 10.2(1)(b), the Applicant’s parents and sister live in South Australia, and his partner and children live in Queensland. His mother visits twice per year and he recently visited his parents. I accept that he has a close relationship with his family of origin. I also accept he has a close and longstanding relationship with Ms C. He has an enduring, although limited, relationship with each of his children. There is no evidence of positive social relationships or other connections to the community. Therefore, I am satisfied that the Applicant has significant familial ties to the Australian community. I am satisfied that, at least, his mother, Ms C and his children will be adversely impacted if he is deported. I note that Ms C will likely suffer significant emotional hardship and will be less able to cope with having care of her children.

Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of a significant level of weight in favour of not exercising the power to cancel the Applicant’s visa.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a decision not to cancel a visa on members of the Australian community, including the Applicant’s victim(s) or the family members of the victim(s). The victim of the Applicant’s offence is Child A, and her immediate family are Ms C and Child B. I have found that it is in the best interests of the children for the Applicant to remain in Australia, and that Ms C will be negatively impacted if the Applicant is deported. This other consideration weighs moderately in favour of not exercising the power to cancel the Applicant’s visa.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In his submission to the Respondent, the Applicant said that if he had to return to his country of citizenship he would have no one there to look after him and would surely die of his conditions (which he clarified in the hearing to mean his diabetes).[142] He nominated homelessness, financial hardship, mental hardship, depression and anxiety as problems he would face.
[142] Transcript, page 45, lines 30 to 35.
The Applicant lived in the United Kingdom to the age of six, and since moving to Australia he has had holidays in England and Ireland.[143] The United Kingdom is, accordingly, not unfamiliar to him. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in the United Kingdom, which is culturally and linguistically similar to Australia.
[143] Transcript, page 16, lines 11 to 14.
The Applicant has a small number of relatives living in the United Kingdom. One grandparent lives in an old age home, his grandmother lives in her own home with a carer looking after her, and his other grandfather lives in a one-bedroom government flat.[144] He is not in touch with any other relatives.[145] The Applicant’s mother confirmed that he would not have any family support in the United Kingdom. She said his grandparents are in their 80s and in poor health and could not support him. She added that his IQ would make it difficult for him to “navigate how to survive”.[146]
[144] Transcript, page 18, lines 29 to 34; page 46 lines 10 to 13.
[145] Transcript, page 76, lines 42 to 46.
[146] Exhibit G1, G-Documents, G10, page 46.
The Applicant suffers from Type I Diabetes. When asked about his claim that he would die of his conditions, he said he would be without support and emotionally devastated and, therefore, would find it hard to take proper care of himself including his diabetes.[147] However, he said his medication is currently working well.[148] The Applicant suffers from anxiety and depression. He will certainly suffer emotional hardship due to his separation from his partner and children. He will likely need medical, psychological and social support in the United Kingdom. It is reasonable to find that, as a citizen of the United Kingdom, he will have access to those services and that the level of medical, psychological and social support available there is at or about the same level as that currently available to the Applicant in Australia.
[147] Transcript, page 45 line 32; page 46 lines 5 to 8.
[148] Transcript, page 46, line 38.
The Applicant has done some hospitality training and worked in that field. He is young and able bodied. I am, therefore, satisfied he has employment prospects.
It is likely that the Applicant will face some difficulty in re-establishing himself in the United Kingdom as he has some impediments and he does not have an existing social or support network there. He may find it difficult to secure accommodation and obtain a job or arrange income support. However, these difficulties would be short-term only and would not prevent him from successfully re-settling there.[149]
[149] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
Accordingly, I am of the view that this Other Consideration (e) weighs moderately in favour of not exercising the power to cancel the Applicant’s visa.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs significantly in favour of not exercising the power to cancel the Applicant’s visa;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: weighs moderately in favour of not exercising the power to cancel the Applicant’s visa; and
(e)extent of impediments if removed: weighs moderately in favour of not exercising the power to cancel the Applicant’s visa .
CONCLUSION
Having regard to the Direction and to the totality of the evidence before me, I am of the view that this Tribunal should not exercise the power conferred by s501(2) to cancel the Applicant’s visa.
In reaching this conclusion, I have had regard to the considerations referred to in the Direction. With regard to the weight I have allocated to each of these Primary and Other Considerations, I find as follows:
·Primary Consideration A weighs moderately, but not determinatively, in favour of exercising the power to cancel the Applicant’s visa;
·Primary Consideration B weighs moderately, but not determinatively, in favour of not exercising the power to cancel the Applicant’s visa;
·Primary Consideration C is of neutral weight;
·Other Considerations (b), (d) and (e) weigh to varying degrees, but not determinately, in favour of not exercising the power to cancel the Applicant’s visa; and
·In combination, Primary Consideration B and Other Considerations (b), (d) and (e) outweigh Primary Consideration A.
Consequently, I do not exercise the power conferred by s501(2) of the Act to cancel the visa that has been previously granted to the Applicant.
DECISION
The decision under review is set aside and substituted such that this Tribunal does not exercise the power conferred by s501(2) of the Act to cancel the Applicant’s visa.

I certify that the preceding 152 (one hundred and fifty two) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

..............................[SGD]..........................................
Associate
Dated: 15 June 2020
Date of hearing:  4 June 2020
Representative for the Applicant:      Mr L Boccabella
Representative for the Respondent:   Mr D McLaren
ANNEXURE A – EXHIBIT REGISTER
File No      2020/1871
Between     DJPM
AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Heard on Thursday, the 4^th of June 2020

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (pages 1-120)

R

-

27 APR 20

R1

Supplementary material (pages 1-239)

R

-

29 MAY 20

R2

Respondent’s Statement of Facts, Issues and Contentions (pages 1-15)

R

29 MAY 20

29 MAY 20

A1

Statement of Facts, Issues and Contentions (pages 1-8)

A

28 MAY 20

28 MAY 20

A2

Medical Report of Dr T.M Hogan (pages 1-15)

A

5 SEP 16

13 MAY 20

A3

Applicant’s Statement

A

26 MAY 20

27 MAY 20

A4

Statement of Ms C

A

26 MAY 20

27 MAY 20

A5

Medical Report of Dr T.M Hogan (pages 1-10)

A

20 MAY 20

28 MAY 20

A6

Letter of Applicant’s mother

A

26 JUN 19

1 JUN 20

A7

Lives Lived Well Letter of support

A

18 MAY 20

1 JUN 20

A8

QuIHN Letter of support

A

28 APR 20

1 JUN 20

[2020] AATA 1773

15 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-120)	R	-	27 APR 20
R1	Supplementary material (pages 1-239)	R	-	29 MAY 20
R2	Respondent’s Statement of Facts, Issues and Contentions (pages 1-15)	R	29 MAY 20	29 MAY 20
A1	Statement of Facts, Issues and Contentions (pages 1-8)	A	28 MAY 20	28 MAY 20
A2	Medical Report of Dr T.M Hogan (pages 1-15)	A	5 SEP 16	13 MAY 20
A3	Applicant’s Statement	A	26 MAY 20	27 MAY 20
A4	Statement of Ms C	A	26 MAY 20	27 MAY 20
A5	Medical Report of Dr T.M Hogan (pages 1-10)	A	20 MAY 20	28 MAY 20
A6	Letter of Applicant’s mother	A	26 JUN 19	1 JUN 20
A7	Lives Lived Well Letter of support	A	18 MAY 20	1 JUN 20
A8	QuIHN Letter of support	A	28 APR 20	1 JUN 20