DMZZ and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1217
•1 August 2017
DMZZ and Minister for Immigration and Border Protection (Migration) [2017] AATA 1217 (1 August 2017)
Division:GENERAL DIVISION
File Number: 2017/0883
Re:DMZZ
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Dr Christopher Kendall
Date:1 August 2017
Place:Perth
The decision under review is affirmed.
............[sgd].......................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 – s 499(2A), s 501(3A), s 501(6), s 501(7)(c), s 501CA(4)
Direction No 65: Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paras 6.2, 6.3, 7(1), 13(2), 8(1), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.3(1), 14(1)(b) and (e), 14.2(1), 14.5(1)
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Passells and Minister for Immigration and Border Protection [2016] AATA 1033Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
1 August 2017
INTRODUCTION
Pursuant to s 35(3) of the Administrative Appeals Tribunal Act 1975, the Administrative Appeals Tribunal (the “Tribunal”) can restrict the publication of the names of parties to proceedings and allocate a pseudonym to the parties if the Tribunal deems it appropriate to do so.
This matter raised sensitive issues relating to a minor aged child of the Applicant. The Tribunal determined that it was appropriate to restrict the identification of the Applicant, his daughter and his family. Accordingly, the Applicant in these proceedings will be referred to by the pseudonym “DMZZ”. The name of DMZZ’s daughter, the names of persons who provided letters of support and the names of those who gave evidence at the hearing have also been altered to ensure confidentiality.
DMZZ is a 43 year old citizen of New Zealand. He arrived in Australia on 5 February 2007 as the holder of a TY Subclass 444 Special Category (Temporary) visa (the “visa”) (T37). He briefly departed Australia on 21 February 2010 and was granted the visa again upon his arrival in Australia on 7 March 2010.
On 5 June 2016, DMZZ was convicted in the District Court of Western Australia of Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine). On 9 June 2016, he was sentenced to 22 months’ imprisonment (T11 at 56).
On 15 November 2016, DMZZ’s visa was cancelled pursuant to s 501(3A) of the Migration Act 1958 (Cth) (the “Migration Act”) because it was found that he did not pass the character test by reason of his “substantial criminal record”, as defined in s 501(7)(c) of the Migration Act (T9 at 27). Specifically, it was found that he had been sentenced to a term of imprisonment of 12 months or more and was also (at the time his visa was cancelled) serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
On 6 December 2016, DMZZ requested that the Minister for Immigration and Border Protection (the “Minister”) use his powers to revoke the mandatory visa cancellation decision (T6 at 16).
On 25 January 2017, a delegate of the Minister decided, acting under s 501CA (4) of the Migration Act, not to revoke the mandatory visa cancellation decision (T9 at 21).
DMZZ was advised of the delegate’s decision on 28 January 2017 (T9).
On 17 February 2017, DMZZ applied to this Tribunal for review of the delegate’s decision (T1).
This matter requires the Tribunal to determine whether it should exercise the discretion in s 501CA(4) of the Migration Act to revoke the earlier decision to cancel DMZZ’s visa.
ISSUES
The issues for determination by the Tribunal are:
(i)whether DMZZ passes the “character test” as that term is used in s 501(6) of the Migration Act; and
(ii)if not, whether the discretion in s 501CA(4) of the Migration Act should be exercised in DMZZ’s favour such that the mandatory decision to cancel DMZZ’s visa is revoked/set aside.
EVIDENCE
General
The matter was heard in Perth on 27 July 2017. DMZZ appeared in person and was assisted by his friend, Ms A. The Tribunal commends Ms A for her efforts in advocating for DMZZ and thanks her for her assistance. The Minister was represented by Mr Burgess from Sparke Helmore Lawyers.
The evidence before the tribunal consisted of the following:
·a Statement of Facts, Issues and Contentions lodged on behalf of DMZZ on 19 June 2017 (A1);
·a completed Carer Payment and Carer Allowance form dated 14 June 2017 (A2);
·a letter of support from Mr C, undated (A3);
·a 136 page set of T documents (T1 to T38) (R1);
·a Statement of Facts, Issues and Contentions from the Minister dated 9 May 2017 (R2); and
·a bundle of police records summonsed from the WA Police (R3).
The Tribunal also heard oral evidence from DMZZ, his wife, his father and his friends, Ms A and Mr B.
The Tribunal has reviewed all of the material before it and highlights relevant materials below.
CONSIDERATION
(i)Does DMZZ pass the Character Test?
The Tribunal must first consider whether DMZZ passes the “character test” as defined in s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Subsection 501(3A) provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (b) or (c); or
... and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.
Section 501(6) of the Migration Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added].
Section 501(7) of the Migration Act relevantly provides;
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more. [Emphasis added].
It is common ground that:
·as a consequence of receiving a sentence of imprisonment in excess of 12 months, DMZZ has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Migration Act. This arises because DMZZ was convicted in the District Court of Western Australia of Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine) for which he was sentenced to 22 months imprisonment with eligibility for parole; and
·as DMZZ was serving a sentence of imprisonment, on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act.
On the evidence before it, the Tribunal finds that DMZZ does not pass the character test as defined in the Migration Act.
(ii) Should the Tribunal Revoke the Decision to Cancel DMZZ’s Visa?
Having determined that DMZZ does not pass the character test and was liable for mandatory cancellation of his visa, the Tribunal must now consider whether the mandatory cancellation of DMZZ’s visa should be revoked by the Tribunal standing in the Minister’s shoes.
Section 501CA(4) of the Migration Act provides that the Minister (and Tribunal) may revoke the mandatory cancelation of an applicant’s visa if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
[Emphasis added]
The central question before the Tribunal is whether there is “another reason” to revoke the decision to cancel DMZZ’s visa.
When considering DMZZ’s request to revoke the decision to cancel visa, the Tribunal must comply with Ministerial Direction No. 65 (“Direction No. 65”) (as per s 499 (2A) of the Migration Act).
Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.
Paragraph 6.2 of Direction No. 65 provides “general guidance” to the Tribunal in relation to the character test and the exercise of the Tribunal’s discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Migration Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 then sets out a number of “Principles” to be applied by the Tribunal, including the following:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
...(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction No. 65 provides guidance to the Tribunal on how to determine whether mandatory cancellation of a non-citizen’s visa should be revoked. Paragraph 7(1) states:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
...(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction No. 65 further states:
8. Taking the relevant considerations in account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.
(4) Primary considerations should generally be given more weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
Part C of Direction No. 65 sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA (4) of the Migration Act.
Primary Considerations
Pursuant to paragraph 13(2) of Direction No. 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
i.Protection of the Australian community from criminal or other serious conduct;
ii.The best interests of minor children in Australia; and
iii.Expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]
(a)Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Relevantly, these include:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, 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;
(c) the sentence imposed by the court for a crime or crimes;
(d)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
…
The evidence shows that DMZZ has an extensive criminal record. The full extent of DMZZ’s criminal behaviour is described in his National Police Certificate dated 19 August 2016 (T10 at 39), which provides as follows:
Court Court Date Offence Court Result Armadale Magistrates Court
11 Aug 2016
No authority to drive – suspended
[counts 1] mdl disqualified: 9 Months – cumulative; fine: $400
Rockingham Magistrates Court
Rockingham Magistrates Court
01 Jul 2016
01 Jul 2016
Possessing stolen or unlawfully obtained property; Criminal Code (WA); 428(1)
Breach of Bail Granted undertaking; Bail Granted Act 1982; 51(1)
Possessed a prohibited drug; Misuse of Drugs Act 1981; 6(2)a
Possess a prohibited plant. Misuse of Drugs Act 1981; 7(2)g
Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse of Drugs Act 1981; 7b(6)
Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse of Drugs Act 1981; 7b(6)
Possessed a prohibited drug; Misuse of Drugs Act 1981: 6(2)a
Possessed a prohibited drug; Misuse of Drugs Act 1982; 6(2)a
Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse of Drugs Act 1981; 7b(6)
Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse of Drugs Act 1981; 7b(6)
Possess a prohibited plant.; Misuse [of Drugs Act 1981; 7(2)g
Possessed a prohibited weapon; Weapons Act 1999; 6(1)(b) b
Unlicensed person possess firearm/ammunition.; Firearms Act 1973; 19 (1)(c) b
Possessed a prohibited drug; misuse of drugs ACT 1981; 6(1)a
Possessed a prohibited drug; Misuse of Drugs Act 1981; 6(2)a
[counts 1] imprisonment: 1 month concurrent from 01-jul-2016 – concurrent
[counts 1] $250
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] fine: $1500. (Global)
[counts 1] imprisonment: 1 month concurrent from 01-jul-2016 – concurrent
[counts 1] imprisonment: 1 month concurrent from 01-jul-2016 – concurrent
[counts 1] fine: $1500 Global
[counts 1] fine: $1500 Global
Perth District Court of Western Australia
09 Jun 2016
Possession of a prohibited drug with intent to sell or supply (methylamphetamine)
[counts 1] imprisonment: 22 Months from 9.6.16 order for destruction of drugs.
Armadale Magistrates Court
29 Jan 2016
Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse of Drugs Act 1981; 7b (6)
[counts 1] $200
Fremantle Magistrates Court
20 Nov 2015
Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse of Drugs Act 1981; 7b (6)
Possess a prohibited drug (cannabis); Misuse of Drugs Act 1981; 6(2)b
[counts 1] fine: $500 (Global)
[counts 1] fine: $500 (Global)
Armadale Magistrates Court 17 Nov 2015 Possess a prohibited drug (cannabis); Misuse of Drugs Act 1981; 6(2)b
Possess a prohibited drug (methylamphetamine); Misuse of Drugs Act 1981;6(2)r
Drove or permitted vehicle with false plate to be drive
[counts 1] fine: $1000 (Global)
[counts 1] fine: $1000 (Global)
[counts 1]; fine: $1000 (Global)
Perth Magistrates Court
07 May 2015
Driving with prescribed illicit drug in oral fluid
[counts 1] fine: $400;
Perth Magistrates Court 17 Aug 2013 Breach of violence restraining order; Restraining Orders Act 1997; 61(1)
[counts 1] $250 Rockingham Magistrates Court 30 Sep 2008 Possess a smoking utensil
Excess 0.08g/100ml
[counts 1] $75
[counts 1] fine: $500; mdl disqualified: 3 months – concurrent
DMZZ also has a record of traffic and road offences in New Zealand, committed prior to his arriving in Australia. These include dangerous driving, driving whilst disqualified, failure to stop when followed by red/blue flashing lights and two separate drink driving offences (T8 at 20).
On 9 June 2016, DMZZ was sentenced to 22 months imprisonment for the offence of Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine). In sentencing DMZZ, Derrick DCJ, of the District Court of Western Australia, described the circumstances of the offending which are summarised at paragraph 38 and 39 below (T11).
On 16 June 2014, police attended at an address for the purpose of executing a Misuse of Drugs Act search warrant. DMZZ, who did not reside at that address, was in the front yard near a car. He was searched and a black container was found in his left pocket containing 19 clip seal bags containing a total of 8.61 grams of methylamphetamine. A small amount of cannabis and $1,150 in cash was also found in the front pocket of his jeans. DMZZ told police that he was at the property to move a car he had recently purchased. He claimed that whilst gathering items that did not belong to him from the car he came across a black case. He then saw the contents of the case and made a ‘spur of the moment’ decision to keep the case and its contents. Later, in a search of DMZZ’s residential property, the police found numerous clip seal bags, a set of electronic scales, straws with scoops on the end of them and a piece of paper with names and numbers written on it.
In sentencing remarks, Judge Derrick found that DMZZ was a user and dealer attempting to fund his own drug addiction. His Honour found that DMZZ’s intention with respect to the 8.61 grams of methylamphetamine was to use some of the drugs himself but sell the majority of the drugs. He further found that DMZZ’s intention in committing this offence was not to make a large profit. Nonetheless, His Honour noted ‘there was still some, albeit very limited commercial aspect to his offending.’
In determining whether DMZZ’s conduct should be viewed as serious, the Tribunal notes Judge Derrick’s comments as follows:
I turn to deal with the issue of the seriousness of your offence. [DMZZ], any offence of possessing methylamphetamine with intent to sell or supply it to another is serious. Methylamphetamine is a dreadful drug. It is the cause of a lot of the crime in our society.
You were in possession of a not insignificant amount of methylamphetamine. Yes, it wasn't as much as sometimes we see in this court, but on the other hand it was more than we sometimes see in this court. It wasn't an insignificant amount.
…
In my view the seriousness of your offence and the need for general deterrence compels the conclusion that suspension of any term of imprisonment is not appropriate. Your case falls a long way short of being sufficiently out of the ordinary to warrant the imposition of anything other than the generally appropriate sentencing. It therefore remains for me to fix an appropriate sentence for your offence.
In my view the appropriate term of imprisonment for your offence, taking everything I have said into account, is 22 months’ imprisonment.
Judge Derrick also concluded that the seriousness of DMZZ’s offence was aggravated by the purity of the methylamphetamine he had in his possession (T11 at 48).
DMZZ has consistently attempted to explain his behaviour by suggesting that the trial judge misunderstood the circumstances surrounding his conduct. In this regard, and as it relates to the seriousness of his offending, DMZZ made the following statement when requesting the decision to cancel his visa be revoked (T2 at 5):
In the statement paragraph 18 of Nature of Seriousness of Conduct. Where it mentions of [sic] the $1150 in cash that was found in front pocket was our bond money for a new house as we had to move from our old house of seven years and the black case that held 8.61grams of methylamphetamines was never proved that I didn’t not find it in the car I had brought [sic] and was collecting from the house mentioned it was only assumed that it was connected with what was found in my house. And paper with names and numbers on it was to keep track of care repairs and cost of work done on cars and parts pricing
The Tribunal notes that DMZZ’s explanations for his offending were rejected by Judge Derrick DCJ who, in sentencing DMZZ, stated that DMZZ had, at times, given evidence in relation to the circumstances leading to his conviction, that was ‘implausible’ and ‘untruthful’. His Honour continued (T11 at 53):
You continue to deny your guilt. You maintain in essence the version of events that you put forward at your trial which was, of course, unanimously rejected by the jury. It follows that you have not accepted responsibility for your conduct, and you cannot be said to be remorseful. The absence of an acceptance of responsibility and the absence of remorse are not aggravating factors. However, their absence does mean that you cannot claim the mitigatory benefit that accompanies an acceptance of responsibility and genuine remorse.
This is of considerable concern to the Tribunal.
In seeking to further explain his behaviour, DMZZ made statements in court that he was depressed at the time he committed the offence (T15 at 61). In his oral evidence before this Tribunal, DMZZ again said that his depression had made him vulnerable to the negative influences of antisocial peers which resulted in his increased methylamphetamine use and ultimately his criminal offending. It is noted that DMZZ offered no medical evidence to support his claims of depression.
Judge Derrick did find that at the time of the offence, DMZZ was experiencing financial hardship and that his motivation for committing the offence was to make enough money to fund his drug habit and meet his and his family’s day to day living expenses. Together, these factors may go some way to explaining his actions.
In relation to the seriousness of DMZZ’s offending, in a statement of reasons for decision not to revoke the mandatory visa cancellation decision (T9 at 31), the delegate for the Minister correctly contended that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.
Further, in relation to the seriousness of DMZZ’s offending, counsel for the Minister submitted before this Tribunal that DMZZ has an extensive criminal record which has in the past included a violent crime. Specifically, he was previously the subject of a violence restraining order taken out by his partner against him in relation to a domestic dispute in August 2013. DMZZ was then charged with breaching that violence restraining order.
Counsel for the Minister further submitted that the cumulative effect of DMZZ’s repeat offending, in particular his numerous drug related offences, was relevant to the Tribunal’s determination that DMZZ offending was of a serious nature.
The Tribunal notes that DMZZ was found to be in possession of methylamphetamine. The trial evidence shows that he intended to sell or supply those drugs in the Australian community. Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime. This is an insidious drug. It devastates the lives of those who use it and the lives of their families and loved ones. Its systemic harms cannot be underestimated and those who distribute it have much to answer for.
Before this Tribunal, DMZZ again seemed intent on framing his conviction as an injustice. He believes he had been wronged by the police and had not done what he was found guilty of doing by a jury of his peers. While he does clearly regret what happened because of the evident damage this has done to his wife and children, he failed to acknowledge individual and systemic devastation caused from the sale and use of drugs in this country. This is unacceptable.
The Tribunal agrees with counsel for the Minister that the cumulative effect of DMZZ’s extensive criminal record is also relevant. Some of DMZZ’s offences, considered in isolation, would not be considered “serious”. However, his offences are numerous, with DMZZ having committed a significant number of offences over a very short period of time. The cumulative effect of his offending raises significant concerns about the safety of the Australian community should the decision to cancel DMZZ’s visa be revoked. The frequency of his offending and the fact that there is an evident trend of increasing seriousness is also of concern.
Having reviewed the evidence before it, the Tribunal finds that DMZZ’s conduct in the commission of the offence “Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine)” can and should be viewed objectively as quite serious. The Tribunal is not satisfied that DMZZ is remorseful for his past conduct or understands the significance to others of what he did. Further, his increasing criminal behaviour evidences a blatant disregard for the laws of Australia and the community in general. The nature of DMZZ’s offending demonstrates a degree of recklessness toward the well-being of the Australian community that cannot be tolerated or dismissed.
All of the above weighs heavily against the revocation of the decision to cancel his visa.
(b) The risk to the Australian community should further offences be committed.
Paragraph 13.1.2(1) of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)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.
(2)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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In relation to the risk to the Australian community should DMZZ commit further offences or engage in other serious conduct, the Tribunal notes a letter from Ms A to the Department dated 4 December 2016, which, relevantly, reads as follows (T26):
When he lost his job he suffered from some depression and was vulnerable in this time he became involved with some unpleasant people that preyed on his vulnerability witch [sic] ultimatly [sic] led to his incarseration [sic].
The Tribunal also notes that when requesting the decision to cancel his visa be revoked in dated 17 February 2017, DMZZ, relevantly, wrote (T2 at 6):
I do believe now I am reformed I should be given a chance to show my community that I will not go down this path again and that I am still a valued person for them.
This sentiment was echoed in a letter to the Department from DMZZ’s wife dated 23 November 2016 where she states that DMZZ is now ‘reformed’.
DMZZ also provided a range of supporting letters, including letters from:
·his daughters (undated) (T18 at 77 and T19 at 78);
·his son (undated) (T19 at 78);
·his father, dated 4 December 2016 (T24 at 83);
·his friends:
oMr B, dated 4 December 2016 (T25 at 84);
oMr C (undated) (Exhibit A3);
oMr D (undated) (T27 at 88); and
oMs E (undated) (T29 at 91); and
·a former colleague dated 23 November 2016 (T28 at 90).
The Tribunal has reviewed all of the above and notes that all speak favourably of DMZZ’s character and the support these individuals are willing to provide him.
In relation to his risk of re-offending, DMZZ, relevantly, wrote as follows in his personal circumstances form dated 5 December 2016 (T15):
I really don’t think there is any chance of me reoffending as I feel I have learnt a valuable lesson and I am determined to make things right for myself, my family and the country of Australia.
In a Statement of Facts, Issues and Contentions dated 9 May 2017, counsel for the Minister disagreed:
32. Relevant issues which relate to the consideration of these criteria are:
a.The applicant has not shown that he can remain abstinent from drugs and it also cannot be said that he has had the opportunity to demonstrate any meaningful rehabilitation outside the supervised environment.
b.The applicant has continuously reoffended and breached bail conditions.
c.The applicant has not provided any evidence that he has undertaken voluntary rehabilitation courses for drug use or violence since being incarcerated.
d.The majority of the character references provided were executed by the applicant’s family members and therefore should be given limited weight.
e.Limited weight should be given to the further character references in circumstances where the references provided (particularly in relation to his demeanour) are directly inconsistent with the applicant’s criminal history.
f.The access to family support should be given limited weight in circumstances where such support mechanisms have been insufficient to alter the applicant’s behaviour in the past.
33.Factors suggestive of a risk of re-offending behaviour include:
a.The long-standing nature of the applicant’s abuse of drugs which appears to have contributed to the applicant’s offending behaviour.
b.The applicant’s apparent lack of understanding of the level of his problems in relation to his drug addictions as noted by the sentencing Judge.
c.The lack of remorse shown by the applicant, demonstrated by:
i. The sentencing Judge’s comments that “… you continue to deny your guilt. You maintain in essence the version of events that you put forward at your trial, which was, of course, unanimously rejected by the jury. It follows that you have not accepted responsibility for your conduct, and you cannot be said to be remorseful”.
ii. The applicant’s continued denial of his guilt contained in his Application for Review in which he claimed that the fact the drugs were his, and the fact that he was dealing drugs “was never proved”.
d.The sentencing Judge’s comments that “I'm satisfied beyond reasonable doubt that you are currently at an appreciable risk of committing further drug-related offences”
Like the Minister’s delegate before it, in considering whether DMZZ represents an unacceptable risk of harm to the Australian community, the Tribunal has had 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. It is noted that some conduct and harm that would be caused if it were to be repeated is so serious that any risk that it is repeated may be unacceptable. Further, in making an assessment regarding the risk to the Australian community, the Tribunal has had regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)the likelihood of further criminal or other serious conduct, taking into account information and evidence on the risk of the person re-offending.
The evidence shows that DMZZ has the support of his family and friends and that these dedicated and good people will seek to assist him if he is released from prison.
DMZZ has expressed his desire to remain in Australia. He says that he has learned his lesson and wants to contribute to Australian society. He is adamant that he will not reoffend and looks forward to providing for his family when gainfully employed. In that regard, the Tribunal notes that DMZZ has been offered permanent employment in Perth when released from prison.
DMZZ’s family and friends are clearly good people who care deeply for DMZZ. It is noted, however, that this support network did not stop DMZZ from offending in the past and the Tribunal has concerns that their ongoing support will not stop him from engaging in illegal conduct again should the opportunity arise.
It is noted in Derrick DCJ’s sentencing remarks that DMZZ has a significant history of cannabis and methylamphetamine use and that at the time of sentencing, according to the pre-sentence report, DMZZ was using cannabis daily and methylamphetamine every weekend.
DMZZ’s oral evidence is that he has sought to address his substance abuse issues by completing Alcoholics Anonymous and Pathways courses while in prison. He said that he is currently undertaking a Narcotics Anonymous course and that he has enrolled in two additional drug education programs.
Despite this, DMZZ has not provided the Tribunal with any additional evidence to support these claims. Further, in his oral evidence, DMZZ confirmed that he had smoked cannabis on one occasion while in prison, albeit in circumstances where he was “tricked” by a fellow prisoner.
The Tribunal also expresses concerns with DMZZ’s wife’s evidence that, like her husband, she too had engaged in drug use (although not to the same extent and not of late). While the Tribunal has no doubt that DMZZ’s wife is and always has been a good mother who cares deeply for her children and husband, her attitude towards her own drug use struck the Tribunal as disturbingly cavalier. This attitude and the family environment it permits will arguably make any prospects of non-use by DMZZ more complicated. DMZZ’s prospects of avoiding further offending are highly dependent on his ability to deal with his substance abuse problems in a drug free and supportive environment.
During the hearing, counsel for the Minister submitted that even though DMZZ may have taken some steps to address his offending behaviour, this had not yet been tested in the community. The Tribunal agrees. This raises concerns about his risk of reoffending.
In relation to DMZZ’s risk of reoffending, the Tribunal notes the sentencing remarks of Derrick DCJ regarding DMZZ’s pre-sentence report which relevantly reads as follows:
The pre-sentence report writer states that you failed to accept responsibility for your predicament, and that you did not seem to consider that your long-term unemployment and poorly developed decision-making and problem-solving deficits were your responsibility.
She states that you presented with pro-criminal antisocial cognitions, and a lifestyle that is supportive of crime. She states that if you fail to stop using drugs, and if you do not gain employment, your risk of reoffending might be considered to be elevated.
I agree with the views expressed by the pre-sentence report writer. Given what can at best be described as your very recent recognition of the problem that you have, and given your failure to accept responsibility for your current offence I am satisfied beyond reasonable doubt that you are currently at an appreciable risk of committing further drug-related offences, and it follows in my view that the sentencing considerations of personal deterrence and protection of the public are of some relevance when it comes to determining the sentence to be imposed on you. [Emphasis added].
There is no evidence before the Tribunal that can lead it to conclude that DMZZ’s risk of reoffending is now low. The evidence before the Tribunal is that DMZZ has quite serious substance abuse problems. To date, his limited efforts to address these issues have not been tested in the community and he does not appear to have the external support needed to continue addressing these issues.
Further evidence before the Tribunal shows that DMZZ has an extensive criminal record. He moved to Australia in 2007 and was first convicted of a criminal offence in 2008. The Tribunal notes the increasing seriousness of his offending since arriving in Australia, his flagrant disregard for the law and his continued reoffending – including committing the same offences repeatedly.
Overall, DMZZ’s conduct was indeed serious and, should he reoffend, the result for the community would again be serious and completely unacceptable. DMZZ did not strike the Tribunal as remorseful and the Tribunal has concerns about his commitment to effective rehabilitation and good behaviour.
Unfortunately, for the reasons outlined above, the Tribunal has reasons to doubt DMZZ’s rehabilitation prospects. In the circumstances, the Tribunal finds that there is a risk that DMZZ will engage in harmful behaviour if released into the community despite the support of his friends and family. This poses an unacceptable risk of harm to the Australian community as there is a risk that he will then reoffend. Given the seriousness of his crime, this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to cancel DMZZ’s visa.
(ii) Best interests of minor children in Australia
DMZZ is the biological father of three minor children in Australia, aged 15, 13 and 10 years old.
As outlined in paragraph 13.2 of the Ministerial Direction, the Tribunal must make a determination about whether revocation of a decision to cancel a visa is in the best interests of DMZZ’s children.
Paragraph 13.2(4) of Direction No. 65 sets out the factors the Tribunal must consider if relevant. They are:
(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is not existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that contact has, or will have, a negative impact on the child;
(d) The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) Whether there are any other persons who already fulfil a parental role in relation to the child;
(f) Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
(h) Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
In relation to the best interests of his children, DMZZ contended as follows in submissions to the Department (T2 at 5):
I feel in the decission [sic] of the interests of three minor children has not really been taken into full consideration as it has been mentioned my eldest daughter has a mental condition or a behaviour problem as they have put it down to as she is at the age where they cant [sic] really put a diognise [sic] on what she has but we do know she has an intellectual learning disability and her behaviour has got worse since I have been away. Which is not helping my wife to gain employment to give our children what they need.
The Tribunal also notes a letter from DMZZ’s wife to the Department dated 23 November 2016 which relevantly reads as follows:
I have relied on my husband [DMZZ] every week to help with his weekly to fortnightly wage to help cover household expenses & medical bills for our eldest daughter, also to be with the children so I can have employment, because of our eldest daughter’s progressive condition, I can only have part-time employment. I feel that deporting [DMZZ] back to New Zealand would only put an even greater strain on our financial position as well as on the well being of our daughter, which then will effect [sic] our other two children … as it is already doing without their Dad around.
As outlined in paragraph 62 above, DMZZ’s children provided letters to the Department expressing their wishes to have their father return home to them.
In his personal circumstances form, DMZZ relevantly wrote as follows (T15 at 62):
Please describe the impact of the cancellation of your visa would have, or has had, on the child/ren listed.
The impact of the cancellation of my visa and being returned to my own country of New Zealand would mean my three children would spend many years without their father being able to spend time with them as we are a close family me alreading [sic] spending time in jail is already affecting them and my oldest daughter already has a mental condition would only get worse without my presence will only effect my other two children and wife more. My wife … and family are not financially able to meet me back home will cause a lot of mental emotional stress on us all [sic].
In this same form, DMZZ went on to explain that the cancelation of his visa would place his wife and children under mental, emotional and financial strain and would cause his eldest daughter’s mental health condition to worsen.
DMZZ provided the Tribunal with some evidence of his eldest daughter’s disability. In documentary evidence before the Tribunal, a psychologist from Princess Margaret Hospital described DMZZ’s daughter’s disability as ‘intellectual disability of unknown cause’ and recommended that she be provided with a carer (Exhibit A2).
In his oral evidence, DMZZ said that his eldest daughter’s disability was characterised by significant behaviour regulation issues which were causing problems at school and leading to her getting in trouble with the police. He said that she liked fishing and the outdoors and that prior to his incarceration he would take her to do these activities. He also said that since being imprisoned his eldest daughter had not been fishing and was missing out on opportunities to do these types of activities, which was having a negative effect on her.
In her oral evidence, DMZZ’s wife explained that it had taken approximately 2 or 3 years to ascertain the nature of her eldest daughter’s disability and that the family had only recently obtained the necessary medical support to begin addressing her daughter’s care needs. She said that her daughter’s behavioural issues were now being addressed by way of increased support and medication but that her daughter still required constant care which, in turn, prohibited DMZZ’s wife from working.
DMZZ’s wife went on to say that if DMZZ was forced to return to New Zealand, it was the family’s intention to return with him. She spoke of her concerns that her eldest daughter’s care would be significantly disrupted by returning to New Zealand and doubted whether her daughter could even receive the same level of support in New Zealand.
At the hearing, counsel for the Minister submitted that care arrangements could be put in place for DMZZ’s eldest daughter prior to her moving to New Zealand in order to minimise the disruptive effect to her care. The Tribunal is inclined to agree with this. There is no reason to believe that comparable medical and social services are not available to persons with mental health issues in New Zealand.
Based on the evidence before it, the Tribunal accepts that DMZZ’s eldest daughter does have a disability and, accordingly, has greater care needs. The Tribunal further accepts that DMZZ has played a positive role in his eldest daughter’s life. She clearly idolises him and him her.
In his closing submissions, Mr Burgess contended that, although the best interests of DMZZ’s children may well be a consideration that weighs in favour of setting aside the decision to cancel his visa, this consideration is outweighed by the other primary considerations – in particular, the protection of the Australian community from harm and the expectations of the Australian community.
The Tribunal agrees.
The Tribunal is conscious of the impact that relocating back to New Zealand may have on DMZZ’s eldest daughter’s medical care and notes that upon returning to New Zealand there may be an initial lack of medical and familial support. However, New Zealand has a welfare system comparable to Australia which will ensure that DMZZ’s eldest daughter has access to a similar standard of health and medical services to which she currently has access in Australia.
Based on the evidence presented, the Tribunal accepts that it is in the best interests of DMZZ’s children, in particular his eldest daughter, for the decision to cancel DMZZ’s visa to be set aside and his visa to be reinstated. However, this consideration does not outweigh the nature and seriousness of DMZZ’s crime and the risk, which is significant, to the Australian community should DMZZ reoffend – a very real risk in light of what has been said above about DMZZ’s rehabilitation efforts and future prospects.
(iii)Expectations of the Australian community
The third consideration listed in Direction No. 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction No. 65 states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
This issue was not formally addressed by DMZZ in his written submissions to the Department. Nor was it addressed in his Statement of Facts, Issues and Contentions received 19 June 2017 or in his oral submissions before the Tribunal.
In relation to this issue, the Minister contended as follows (Exhibit R1 at 13) :
The Australian community would expect that the applicant, being a visa holder who has committed a serious drug related offence with potentially very serious consequences, would not have his visa reinstated.
In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction No 65 and, in particular, the principles that:
·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes; and
·non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia.
In the circumstances of this matter, the Tribunal considers that the expectations of the Australian community are that a non-citizen, such as DMZZ, who was convicted of a quite serious drug offence, who has continuously shown disregard for the laws of Australia and who has shown little evident remorse for his conduct should expect to lose his visa and forfeit the privilege of remaining in Australia. This is so despite any disadvantage that might be inflicted on DMZZ’s children – who, it is stressed, have the right to return to New Zealand and who are not being forced legally to separate from their father.
(iv)Other considerations
Paragraph 14(1) of Direction No 65 provides:
14. Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(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.
Based on the evidence currently available, the other considerations that may be relevant in the present case are the strength, nature and duration of the DMZZ’s ties with Australia and the extent of impediments to him if he is removed from Australia.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 65 requires the Tribunal to consider DMZZ’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
DMZZ did not formally address this consideration in any documentary evidence lodged with the Tribunal. However, there is evidence before the Tribunal that DMZZ does indeed have ties to Australia. Importantly, he has lived here since 2007 and his children and wife live here and are firmly established here.
In his oral evidence, Mr B said that he and DMZZ were good friends and that DMZZ had helped him when he had needed it in the past. He said that he often cared for DMZZ’s children and looked forward to a time when DMZZ was released back into the Australian community.
In her oral evidence, Ms A said that DMZZ had been a positive male role model in her son’s life and that he and her son had a very strong bond. She said that her son regularly visited DMZZ in prison and that if DMZZ were to return to New Zealand, this would have a considerable negative effect on her son.
Mr Burgess, for the Minister, in a Statement of Facts, Issues and Contentions dated 9 May 2017 contended as follows:
41.In relation to the strength, nature and duration of ties in Australia, the applicant only moved to Australia in 2007 at the age of 33. He has family and children in Australia. The respondent contends that less weight should be given to this factor where there was a short period between arrival and the first offence: 14.2(1)(a)(i) of Direction 65.
DMZZ has spent approximately ten years in Australia, contributing to the community in various employment roles. Accordingly, the Tribunal finds that he has been making some contribution to the community. He also has a group of friends who support him and speak of his positive impact in their lives.
The Tribunal has, however, given less weight to these considerations as DMZZ started to offend soon after arriving in Australia. Further, while the Tribunal finds that DMZZ does have some ties to the Australian community, the Tribunal is not convinced on the balance that the nature and strength of his ties with Australia outweigh the primary considerations referred to above.
Impact on victims
There was no direct evidence before the Tribunal regarding the potential impact on victims should the cancellation decision be revoked. The Tribunal simply notes the adverse effects of the supply of prohibited drugs in this country – including drug use and addiction, criminal activity to fund drugs, the cost to the community in terms of law enforcement and public health, and the negative health and social impact of drug use on individuals and their families.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 65 requires the Tribunal to consider the extent of any impediments if DMZZ is removed from Australia as follows:
14.5 Extent of impediments if removed
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
In relation to this issue, in his request for the revocation of the mandatory visa cancellation, DMZZ wrote (T6 at 18):
My reasons to have my visa revoked are myself and my wife and three children have lived in Australia for 10 years and have a lot of long term friends and commitments to my oldest daughters mental health and all of our children’s schooling needs and my biggest support system is my father and friends I will loose [sic] that support system if I am deported back to New Zealand.
Counsel for the Minister in turn contended as follows:
45.The applicant is currently 43 years of age and would have no language impediments if removed. The respondent contends that the New Zealand government offers comparable social welfare to which the applicant may be entitled and that cultural and social conditions are also comparable. In the circumstances facilities would be available for the applicant’s health needs to be met.
46.The applicant claims that he has no family support in New Zealand. No evidence has been provided in respect of that contention and, of itself, it does not outweigh the consideration of the other factors which warrant against the exercise of the discretion.
47.Accordingly, this factor does not outweigh the considerations favouring non-revocation.
During the hearing DMZZ gave evidence that his mother resides in New Zealand but that he did not anticipate having any contact with her if returned to New Zealand. He said that he did not have a support network in New Zealand and would struggle if forced to return there.
DMZZ’s father gave oral evidence that he still had a good relationship with DMZZ’s mother. He said that his family in New Zealand were aware of DMZZ’s situation but he was unsure of the support they could offer DMZZ if he returned.
In relation to the requirements of paragraph 14.5(1) of Direction No. 65, the Tribunal is not convinced that there are significant impediments to DMZZ being removed to New Zealand in circumstances where the language and culture in that country are similar to that of Australia. DMZZ is a New Zealand citizen and will have access to basic social, medical and economic support in that country. Importantly, these services include drug and alcohol counselling of a sort that will assist DMZZ rebuild his life and deal with the substance abuse issues that contributed to his offending in Australia. Further, the Tribunal considers that DMZZ’s work history, both in Australia and New Zealand, together with his qualifications will be to his advantage in his home country.
Although it is clear that life will be challenging for DMZZ and his family if returned to New Zealand, given that he has not lived in New Zealand since 2007 and has a fractured relationship with his family in New Zealand, the extent of any impediments that do exist does not outweigh the primary considerations discussed above.
Accordingly, the Tribunal finds that this consideration does not favour revoking the decision to cancel DMZZ’s visa.
CONCLUSION
On 9 June 2016, DMZZ was sentenced to 22 months’ imprisonment for Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine).
Having received a sentence of a term of imprisonment in excess of 12 months, DMZZ has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Migration Act. Further, as DMZZ was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Migration Act. His visa was mandatorily cancelled on 15 November 2016.
In determining whether there is any reason why the decision to cancel DMZZ’s visa should be revoked, the Tribunal has attached significant weight to DMZZ’s lengthy criminal record and the fact that his offending was serious in nature. The crime in question, Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine), was a serious crime and its commission must be viewed seriously.
In this regard, the Tribunal has taken account of the following factors detailed in paragraph 13.1.1 of Direction No. 65:
a)the sentence imposed by the courts for crimes – noting that in DMZZ’s case a custodial sentence was ordered based on the seriousness of his offending;
b)the frequency of the non-citizens offending – noting that DMZZ’s offending has continued to escalate since 2015, having been charged with no less than ten offences since May 2015 which include, inter alia, breach of bail and possession of a prohibited weapon; and
c)the cumulative effect of repeated offending – noting that the cumulative effect of DMZZ’s drug offences plainly demonstrates his blatant disregard for the laws of Australia and the harm caused to the community.
The Tribunal also finds that there remains an unacceptable risk that DMZZ may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the nature of the harm to individuals or the Australian community should DMZZ engage in further criminal or other serious conduct and the likelihood of further criminal or other serious conduct, taking into account relevant information and evidence on the risk of DMZZ re-offending.
DMZZ’s prospects of avoiding further offending are highly dependent on his ability to deal with his substance abuse problems. On the evidence, the Tribunal finds DMZZ has failed to, and continues to fail to, recognise the gravity of his offending. DMZZ still has considerable work to do in relation to drug and alcohol rehabilitation and there is a risk that DMZZ will engage in anti-social and harmful behaviour if released into the community because of his clear addiction issues. This poses an unacceptable risk to the Australian community as there is a risk that he will reoffend. Given the nature of his crime this is an unacceptable risk to the community and weighs heavily against any revocation of the decision to revoke DMZZ’s visa.
Given the nature of the crime committed and the prospect of future offending, the Tribunal is also of the view that the Australian community would expect that DMZZ’s visa would remain cancelled. This is despite the difficulties his family will face if they return to New Zealand.
There are considerations that weigh in favour of revocation of the decision to cancel DMZZ’s visa. These include his ties to the Australian community and the best interests of his children – particularly his eldest daughter who struggles with evident mental health issues and who requires medical care and a support network. The Tribunal also accepts that in this regard DMZZ may face some difficulties if he is returned to New Zealand.
The Tribunal finds, however, that these countervailing considerations do not, on balance, outweigh the other primary considerations referred to above.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65 the correct and preferable decision is to refuse to revoke the cancellation of DMZZ’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 128 (one hundred and twenty eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall.
...........[sgd].............................................
Administrative Assistant
Dated: 1 August 2017
Date of hearing: 27 July 2017 Representative of the Applicant: Ms A Representative of the Respondent: Mr Burgess Solicitors for the Respondent: Sparke Helmore
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