DND v Minister for Home Affairs (Migration)

[2018] AATA 2716

DND and Minister for Home Affairs (Migration) [2018] AATA 2716 (9 August 2018)

Division:GENERAL DIVISION

File Number(s):      2018/2828

Re:DND

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Mr P W Taylor SC, Senior Member

Date:9 August 2018

Place:Sydney

The delegate’s reviewable decision of 17 May 2018 decision is set aside.

In substitution for the 17 May 2018 decision, the 17 August 2017 decision to cancel the Special Category (Temporary) Class TY Subclass 444 (Special Category) visa is revoked.

......................[sgd]..................................................

Mr P W Taylor SC, Senior Member

Catchwords

MIGRATION – cancellation of Applicant’s visa – whether cancellation of the Applicant’s visa should be revoked – primary considerations – protection of the Australian community – nature and seriousness of the conduct – expectations of the Australian community – assault – shoplifting – robbery – mid range PCA – best interests of minor children in Australia – other considerations –- strength, nature and duration of ties to Australia – impact on victims – decision set aside

Legislation

Children (Criminal Proceedings) Act 1987 (NSW)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48
Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140
Maioha v Minister For Immigration and Border Protection [2018] FCA 1016
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38
Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620
Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014

REASONS FOR DECISION

Senior Member P W Taylor

9 August 2018

1. Twenty two year old Mr DND was born in New Zealand in 1996. He came to Australia (with his parents and three year old brother) in February 1997, a few days after his first birthday. Up until he was about 15 he went back to New Zealand for holiday visits, at roughly annual intervals. He also spent about three months in New Zealand in late 2010 and early 2011. Apart from those occasional visits, he has been raised and educated in Australia. Nevertheless, he is a New Zealand citizen and, as such, his entitlement to remain in Australia depends on his visa status:- see Migration Act 1958 (“MigAct58”) ss 13-15, 189, 198(2B).

2. As a New Zealander who had presented a passport on his most recent return to Australia (in July 2012) and who had not been sentenced to 12 month’s imprisonment, nor previously removed from Australia, Mr DND held a Special Category (Temporary) Class TY Subclass 444 (Special Category) visa:- see MigAct48 s 5, 32; Migration Regulations 1994 (“MigReg94”) 5.15A, Schedule 1 Part 2 Item 1219. Such a visa entitles its holder to remain in Australia for as long as they retain their New Zealand citizenship:- see MigReg94) Schedule 2 Item 444.511. Mr DND held that visa until 17 August 2017. At that time he was in prison, serving six concurrent 12 month sentences for the dishonest use of a credit card. Those circumstances attracted the operation of MigAct58 s 501(3A), and triggered the mandatory cancellation of his visa.

3. Visa cancellation is not, however, the only relevant mandatory obligation that applied. As soon as practicable after making a cancellation decision under MigAct58 s 501(3A) the Minister must (i) give the former visa holder appropriate notice of the decision, (ii) provide specific information about the reason for the cancellation, and (iii) invite the person to make submissions “about revocation of the original decision”:- MigAct58 s 501CA(3).

4. The Minister complied with those obligations, Mr DND accepted the representation invitation on 4 September 2017, and submitted some initial representations with his reconsideration request. His solicitor submitted a more comprehensive set of representations in April 2018. However, a Ministerial delegate decided not to revoke the cancellation decision. That 17 May 2018 decision is the subject of Mr DND’s review application in the present proceedings.

   MR DND’S CRIMINAL RECORD

5. Mr DND has incurred convictions for about 46 offences. He committed 15 of those offences as a juvenile. His thirty one other offences occurred in the three year period (from March 2014 to March 2017) after he turned eighteen. The available records of his convictions, sentences, and periods in custody are difficult to correlate. In some instances the recorded details are of doubtful accuracy. In other instances, where sentences have been backdated, the information needs to be read carefully to avoid misunderstanding. Subject to that caveat, the basic details of his various offences, including the penalties they attracted, are outlined in the Schedule to these reasons. The Schedule differentiates between his juvenile and adult offences. In each case it includes (where known) the date of each of Mr DND’s offences (the Schedule is arranged according to that date order). I have added to the Schedule what I regard as the most appropriate impressionistic categorisation of each of the various offences, having regard to the circumstances they involved. The Schedule also includes (i) Mr DND’s age at the time of each offence (or conviction), (ii) the conviction date, (iii) the periods when he was in custody – either on remand or under sentence, and (iv) the dates of birth of each of his two children.

6. The Schedule details reveal the following:

   (a)Most of Mr DND’s juvenile offences involved either offensive behaviour or fare evasion. The nine offences in those categories, and one assault offence, resulted in only comparatively modest fines.

   (b)Five of Mr DND’s juvenile offences involved theft. Three of those were either robbery offences, or involved an assault associated with theft. The August 2012 robbery offence resulted in an 18 month detention order under the Children (Criminal Proceedings) Act 1987 (NSW). (That order is a significant consideration because, under s 33(2) of that Act, a detention order cannot be made unless a court is satisfied that it would be “wholly inappropriate” to deal with the juvenile offender in any other way.)

   (c)Five of Mr DND’s adult offences related to either fare evasion or bad behaviour, and were sanctioned only by fines.

   (d)Nine of Mr DND’s adult offences were driving offences. Seven of those offences involved two instances (in August and December 2016) of driving with mid range blood alcohol concentrations. Those two specific alcohol concentration offences attracted separate one and two month sentences of imprisonment. Three related offences resulted in convictions without penalty. The two remaining offences, of unlicensed driving, attracted penalties one and nine month’s imprisonment.

   (e)Seven of Mr DND’s adult offences involved some element of violence. One of those offences (in October 2015) resulted in a 10 month imprisonment sentence. However, as the Schedule reveals, the sentence was backdated nine months and ran from the time Mr DND was placed on remand. Furthermore, Mr DND had been released five months before his conviction, and the four month non-parole period of the July 2016 sentence ended on the date of his actual release, five months earlier, in February 2016. The other six of the offences categorised in the Schedule as involving violence were initially dealt with by either a fine, a significant good behaviour bond, or by both. However, in relation to three of those matters, he was subsequently called up and re-sentenced for bond breaches.

   (f)Nine of Mr DND’s adult offences involved dishonesty. Three of them occurred between March 2014 and May 2015. They were dealt with by way of fines and bonds. The remaining six offences involved the use of a stolen credit card on 15 May 2017. Those six offences resulted in Mr DND’s most significant individual sentences – 12 month’s imprisonment on each charge.

   THE CONSEQUENCES OF VISA CANCELLATION

7. Where a visa has been cancelled, its former holder becomes an “unlawful non-citizen”. As such they are liable to be held in immigration detention until (subject to some presently immaterial contingencies) their visa is restored, they obtain another visa or they are removed from Australia:- see MigAct58 ss 189, 196. They are required to be removed from Australia “as soon as practicable” – unless they have made undetermined representations for revocation of their visa cancellation (or an undetermined application for a protection visa):- see MigAct58 ss 198(2B)&(5A).

8. There are limited prospects of a non-citizen either making a valid application for, or obtaining, another visa after any visa cancellation decision. Whilst such a former visa holder remains in “the migration zone” (i.e. for most practical purposes, within Australia or its territorial waters), there is a statutory preclusion against them applying for, or obtaining, most other classes of visa:- MigAct58 s 501E(1). That preclusion does not apply to applications for a protection visa, for a bridging visa pending the person’s removal, or to a discretionary Ministerial visa grant to a person in immigration detention: - see MigAct58 s 501F(3); Migration Regulations 2.12AA & MigAct58 s 195A.

9. After a non-citizen has left “the migration zone” as a result of a visa cancellation decision there is no express prohibition against them making a subsequent visa application. But the prospects of any such application being successful are forlorn. This is because a New Zealand citizen whose visa had been cancelled:

   (a)would likely be both a “behaviour concern non-citizen” and a person for whom another visa class had not been declared inappropriate, and consequently unable to meet the Subclass 444 visa eligibility criteria:- see MigAct58 s 32 and MigReg94 5.15A;

   (b)would be unlikely to satisfy the public interest criterion 4001 (see MigReg94 Schedule 4) which is a common “primary” and “secondary” criterion for many visa subclasses;

   (c)would be unlikely to satisfy the “special return” criterion 5001 (see MigReg94 Schedule 5) which is also a common additional “primary” and “secondary” criterion for many potentially relevant visa subclasses (including tourist [676], holiday [462], parent [103], remaining relative [115] and partner [103] subclasses. (The general effect of criterion 5001 is that it excludes a person whose visa has been effectively and finally cancelled under MigAct58 s 501.)

10. It follows that an unrevoked visa cancellation decision is very likely to preclude the success of any future offshore visa application that a non-citizen might seek to lodge. In that respect an unrevoked visa cancellation decision has the probable practical effect of permanent exclusion from Australia. Conversely, revocation of a visa cancellation decision merely restores the visa:- see MigAct58 s 501CA(5). The non-citizen holder of the restored visa is still subject to the risk of discretionary cancellation, at least in the event of further offending, or a material adverse change in their relevant personal circumstances:- see MigAct58 ss 501(2)&(3B). If a further offence resulted in the person serving a further term of imprisonment, their visa cancellation would be mandatory.

    THE REVOCATION DISCRETION

11. As the mandatory invitation obligation (referred to in paragraph 3 above) implies, the Minister has a conditional discretion to revoke a visa cancellation decision. Exercise of that discretion depends on alternative satisfaction that either (i) the person does not have a “substantial criminal record” or (ii) there is “another reason why” the cancellation decision should be revoked:- see MigAct58 s 501CA(4).

12. By November 2013 two of Mr DND’s convictions had resulted in 18 month detention orders under the Children (Criminal Proceedings) Act 1987 (NSW). Those orders probably involved “imprisonment” for the purposes of MigAct58 s 501(3A) and resulted in Mr DND having a “substantial criminal record” – having regard to the statutory “character test” in MigAct58 ss 501(6) and (7). At the time of his July 2016 conviction he attracted two sentences totalling 14 months for two of his adult offences. That meant he had by then acquired a “substantial criminal record”, even though both sentences were backdated and he did not actually serve any time in prison under sentence (as distinct from being on remand). Mr DND had certainly acquired a “substantial criminal record” as a result of his May 2017 offences, and the circumstance that he was actually in prison serving the sentences imposed in August 2017, triggered the 17 August 2017 visa cancellation decision.

13. Because Mr DND undoubtedly has a “substantial criminal record”, exercise of the revocation discretion depends on satisfaction that there is “another reason why” the cancellation decision should be revoked:- see MigAct58 s 501CA(4)(b)(ii). Given that criterion, it is clearly a fundamental misconception of the MigAct58 provisions relating to visa cancellation, and the Parliamentary intention they embody, to entertain or promulgate the notion that the appropriateness of visa cancellation begins and ends with the circumstance that the non-citizen has committed offences and has a “substantial criminal record”. Where a former visa holder accepts the statutorily required representation invitation, the “another reason” criterion requires consideration of all circumstances relevant to the particular non-citizen whose status is in contention. The purpose of that consideration is to achieve a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]-[83].

14. Any decision made in the exercise of the revocation cancellation discretion must be legally “reasonable” – in the sense that it has a rational foundation and involves a result that is not plainly unjust:- Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [13]-[20]. Where the discretion falls to be exercised in the Tribunal’s review jurisdiction, that jurisdiction is to be exercised for the purpose of achieving the “correct or preferable” result, having regard to the terms and purpose of the relevant statutory provisions, and the available relevant information:- Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589.

15. Essentially the same obligation applies to every person discharging functions that require the exercise of the statutory discretion. No such person should misapprehend, or be directly or indirectly discouraged or deflected, from discharging the statutory obligation. Irrespective of the identity or status of the person involved, their decision making process cannot be a merely formulaic exercise that masquerades as a genuine discharge of the statutory obligation. It necessarily follows that the required consideration must have regard to all relevant matters, and must consider the extent to which they tend to point for or against maintaining the mandated visa cancellation decision:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The process of considering relevant matters must involve “an active intellectual engagement” with the principles governing the exercise of the discretion, and with the available information concerning the particular non-citizen:- Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]–[49]; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26]; Maioha v Minister For Immigration and Border Protection [2018] FCA 1016 at [24]-[26]; Rodchompoo v Minister for Immigration and Border Protection [2018] FCA 965.

    MINISTERIAL DIRECTION NO. 65

16. When exercised by either a Ministerial delegate or this Tribunal, the statutory “another reason” revocation discretion is subject to compliance with any Ministerial direction authorised by MigAct58 s 499(1)&(2A). The relevant direction is “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”).

17. Direction no. 65 provides guidance intended to assist in the appropriate exercise of the relevant discretion. Its guidance does not derogate from the duty of any decision-maker to reach the preferable decision in the light of the circumstances relevant to the particular non-citizen and their conduct:- Jagroop v Minister for Immigration & Border Protection [2016] FCAFC 48; 241 FCR 461 at [57],[78]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in the latter case:

    [35]… the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.

18. Given the potential amplitude of the “another reason” criterion, and the obligation imposed by MigAct58 s 499(2A), it is prudent to outline the material content of Direction no. 65, notwithstanding that is a publicly available document. The Preamble to the Direction details the principal objective of MigAct58 (i.e., the national interest regulation of non-citizen presence in Australia) and the objectives of the relevant statutory visa cancellation provisions. In relation to the latter, the stated objectives include the requirement that the statutory discretion (whether it relates to visa granting, cancellation or cancellation revocation) is to be exercised after consideration of “the specific circumstances of the case”:- cl 6.1(2) and (3).

19. The succeeding part of the Preamble to Direction no. 65 provides a statement of “general guidance” for decision-makers. The statement commences with a declaration of the Government’s commitment to “protecting the Australian community from harm as a result of criminal activity”, and from what is referred to as “other serious conduct”. (This may be a reference to situations where a person’s mental incapacity precluded formal conviction, but their conduct would otherwise have been characterised as criminal:- see MigAct58 ss 501(7)(e)&(f)). The guidance statement continues with a reference to “principles” that are described as providing “a framework” within which decision-makers should operate in individual matters. The “principles” are said to “reflect community values and standards” relevant in assessing whether “the risk of future harm from a non-citizen is unacceptable”. They are said to be of “critical importance” in furthering the objective of the Government’s protective commitment:- cl 6.2(1)&(3).

1. The various “principles” are set out in cl 6.3 of Direction no. 65. They can be understood as involving the substance of the following propositions:-

   (a)the character of a non-citizen’s lawful presence in Australia is a conditionally available statutory right (described as a “privilege”) conferred on the basis of expectations the visa holder will (i) comply with Australian law, (ii) respect Australia’s government institutions and, (iii) not cause any harm to either individuals or to the Australian community:- cl 6.3(1)

   (b)where a non-citizen has committed “serious crimes” (non-exhaustively exemplified as those involving violence, sexual violation and offences whose victims were officials, disabled, elderly or children), there is a general community expectation of visa refusal or cancellation:- cl 6.3(2)&(3)

   (c)in “some circumstances” the nature of a non-citizen’s past offending conduct, and its associated harm, may be so serious that “any risk” of future repetition is unacceptable, despite “strong countervailing considerations” favouring the person’s continued presence in Australia:- cl 6.3(4).

   (d)in other circumstances it may be appropriate to afford a degree of tolerance in relation to a non-citizen’s “criminal or other serious conduct”.- cl 6.3(5)

   (e)the appropriate degree of tolerance is low where the non-citizen is either a visa applicant or the holder of a limited stay visa because they cannot have any justifiable expectation of continued presence in Australia:- cl 6.3(6)

   (f)the appropriate degree of tolerance is also stated to be low in relation to the criminal conduct of a non-citizen visa holder whose Australian community presence and contribution has been “only for a short period of time”:- cl 6.3(5)

   (g)where a non-citizen visa holder has lived in Australia either “for most of their life”, or from an early age, a higher level of tolerance “may” be appropriate in relation to the risk of their future offending:- cl 6.3(5)

   (h)any adverse impact of visa cancellation on Australian resident family members and minor children, is a relevant consideration to which regard should be had:- cl 6.3(7)

   (i)the extent and nature of a non-citizen’s positive contribution to the Australian community are relevant considerations in the exercise of the statutory discretion:- cl 6.3(5)&(7).

2. The principles recognise a “higher level of tolerance” as a permissible possibility in the case of both long time, and youthful Australian residence. They do so without articulating the reasons why, the circumstances when, or the extent to which, those matters are thought to be influential in calibrating the appropriate degree of tolerance. Nevertheless, and despite the diffidence inherent in the permissive expression “may”, the overall context, and the requirement to pay genuine regard to the identified relevance of those matters, suggests they should be regarded as influential considerations that, at least in isolation, inherently favour retention of visa status, notwithstanding the existence of a real risk of future offending and related harm. The appropriate degree of influence will be informed by the apparent extent of those risks, and by the impact of visa cancellation on Australian resident family members (and on the non-citizen). But those matters, to which regard is specifically contemplated by cl 6(4) and 6(7), do not exclude significance being accorded to the mere fact of the non-citizen’s developmental upbringing in Australia. And since that fact is expressly identified as a relevant consideration, it is difficult to escape the conclusion that a person’s Australian residence from a young age may significantly contribute to a conclusion that it is appropriate to continue to tolerate their presence in, rather than to exclude them permanently (see paragraphs 9 & 10 above) from, the Australian community in which they have been raised.

3. Section 2 of Direction no. 65 deals specifically with the exercise of the various visa related statutory discretions. It begins with a general requirement that decision-makers (i) exercise the discretion “informed by the principles”, (ii) take into account “the primary and other considerations relevant to the individual case”, and (iii) recognise that primary considerations “should generally” be given greater weight: - cl 7 & 8. It then differentiates between grant, cancellation, and revocation decisions. (In relation to that differentiation, Direction no. 65 explains that, unlike visa applicants, non-citizens who hold a substantive visa will generally have an expectation of being “permitted to remain for the duration of their visa”:- cl 8(1). That explanation complements the substantive distinction drawn in cl 6.3(5)&(6) between non-citizens who hold unlimited stay visas and those who do not.)

4. A visa related decision-maker, irrespective of whether they are dealing with grant, cancellation, or revocation decisions, is directed to have regard to “primary considerations” and to “other” considerations. Part C of Section 2 articulates the “primary” considerations (which are in fact common to all the discretions), and some of the “other” considerations, to which regard must be had in the exercise of the revocation discretion. The “primary” considerations are:-

   (a)the protection of the Australian community – i.e., the governmental commitment declared in the Preamble to Direction no. 65;

   (b)the expectations of the Australian community; and

   (c)the best interests of Australian resident minor children.

5. The “other” considerations specifically discussed in Section 2 Part C, to the extent they are material to Mr DND’s particular circumstances, are:

   (a)the strength, nature and duration of his Australian ties;

   (b)the nature and extent of any difficulties he is likely to encounter in establishing himself in New Zealand, and

   (c)(to the extent it can be determined) the impact of any revocation decision on victims of his conduct.

6. The general guidance that “primary” considerations are to be given more weight than other considerations does not dictate that “primary” considerations must necessarily be accorded determinative weight:- Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28], [44]; HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [34]-[41]. In any particular case, depending on the circumstances, one or more of any permissibly relevant considerations may be determinative of the exercise of the relevant discretion:- YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [59].

   THE PROTECTION FROM HARM CONSIDERATION

7. The general guidance in cl 6.2(1) of Direction no. 65, and in the corresponding mandatory consideration in cl 13.1(1), emphasises the governmental commitment to protection from harm arising from the criminal activity of non-citizens. That commitment implies limited and, as the principles convey, generally low tolerance – especially in relation to “serious” offences.

8. There is a sense in which all offences can be regarded as “serious”, and especially where they result in a custodial sentence:- see e.g., cl 6.2(1), 6.3(5), 6.3(6); 9.1(1), 9.1.2(2), 13.1(1), 13.1.2(2). But parts of Direction no. 65 implicitly disavow the inevitability of such a classification. Clause 13.1.1(1)(a), for example, contemplates that a wide range of offences “may” be considered serious. This permission implies a corresponding recognition that such a characterisation is neither mandatory, nor even appropriate, for some offences. Similarly, cl 13.1.1(c) to (e) require regard to the frequency and number of offences, as well as to the actual sentence imposed. Those obligations provide further context to the permission, and also tend against the conclusion that individual sentences, even of 12 month’s imprisonment, must necessarily be regarded as determinatively serious. Elsewhere, the statement of principles in Direction no. 65 cl 6.3(2)&(3) use, but do not define, the expression “serious crime”. Similar expressions (“serious” Australian and foreign offences) are defined in MigAct58 s 5. The general thrust of those definitions is that they mean offences that (i) involve violence, serious property damage or serious drug offences, and (ii) are punishable by imprisonment for three years or more. The exegesis in cl 13.1.1(a) & (b) of Direction no. 65 provides an analogous categorisation. It points to the likelihood that “serious crime” includes violent and sexual crimes, as well as crimes against officials and vulnerable victims. All of those matters provide insight into the exercise involved in determining whether one or more of the offences of which a particular individual has been convicted merit characterisation, for the purposes of the revocation discretion, as “serious”. But they ought not be regarded as the sole, or even the necessarily determinative, source of information relevant to the characterisation. As Buchanan J emphasised in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; 220 FCR 1 (at [202] & [207]) a visa applicant / former visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances. The best guide to the objective seriousness of a particular person’s offences comes from an understanding of the actual circumstances involved in the various offences and their sentences.

   MR DND’S JUVENILE OFFENCES

9. The summary of Mr DND’s juvenile offences that I set out earlier (see paragraphs 6(a) & 6(b) above) suggests that the only matters meriting significant consideration are the offences Mr DND committed in 2011 and August 2012. They were the offences that initially involved orders imposing good behavioural bonds, probation requirements and, ultimately, detention.

10. The April 2011 offences Mr DND described as involving an episode when he and some of his friends stole lollies from a shop, and later had some kind of an altercation with the shopkeeper who pursued them. On its own, and in the absence of any evidence of significant injury, this incident might be put on one side as aberrant youthful stupidity. The good behaviour bond it initially attracted is consistent with that view. But the incident assumes greater significance in the light of the December 2011 robbery offence. That incident involved another theft of lollies and cigarettes from a convenience store. Its significance is that it was a repeat offence, committed at a time when Mr DND was already subject to a good behaviour bond. That significance is reflected in the fact that Mr DND was not only called up on the previously required bond, but subjected to an extended period of probation.

11. Less than nine months later, Mr DND committed his third robbery type offence. He recounted meeting up with a friend, taking an anti-anxiety medication, and getting “blind drunk”. In that state the two of them conceived the idea of robbing a service station, and enlisted the aid of some other friends to drive them. In the course of this planning, Mr DND’s drinking partner determined to equip himself with a knife to use in the robbery. Mr DND, fully aware that the friend had a knife and intended to use it, went along with the robbery plan. He only bailed out at the last moment – in that he waited outside the service station, rather than accompanying his knife wielding friend inside. It was this offence that resulted in the 18 month detention order recorded in the Schedule. For the reasons I set out earlier (see paragraph 6(b) above) that order was a significant penalty, and indicates the obvious seriousness of the offence. Not only that, Mr DND had continued to offend, despite the previous bond and parole orders, and his offending had increased both in the nature of his conduct and the risk of resulting harm.

    THE 25 MARCH 2014 OFFENCES

12. These offences involved events late on a Tuesday evening train journey to Kogarah railway station. Mr DND was on his way home with his girlfriend and another friend with whom he had been drinking. The friend stood in front of another train traveller alongside of whom Mr DND was seated. They both asked the traveller for money, and persisted with their requests despite his protestations that he had none. Apprehensive about the persistence of Mr DND and his friend’s requests, the passenger attempted to get off the train at its next stop. But when he went to do so, Mr DND and his friend said they would get off with him. Concerned at the prospect of being alone at night in a railway station with Mr DND and his friend, the passenger changed his mind. All three of them remained on the train. Mr DND’s friend then started to grab at the passenger’s pockets. In an attempt to avoid further trouble, the passenger produced his wallet to demonstrate his poverty. It contained $1.50. Mr DND took the money and then went to the upstairs section of the carriage and asked other people for money. His friend remained with the first passenger. As the train arrived at the next station, the friend demanded the passenger’s mobile phone. He ultimately responded to the passenger’s refusal by first head-butting him, and then punching and kicking him. By this time the train had come to a halt at the Kogarah train station. Mr DND was standing at the train doors, holding them open and preventing the train from leaving. The train station guard then came to the carriage and attended the passenger who had been assaulted. In the meantime, Mr DND and his friend had made their way out of the train station and caught a bus to Mr DND’s home. Mr DND was arrested there the next day.

13. In the explanation for this offence that Mr DND gave in the history he provided for the 24 November 2015 psychological assessment (to which I refer in paragraph 46 below), Mr DND basically conceded that he had harassed the train passenger for money and had been annoyed at his requests being refused. But he also said that he had not anticipated (or intended) that his friend would physically assault the victim. That explanation seems to be consistent with (i) an objective view of the other available information about the circumstances of the offence, (ii) the fact that Mr DND was only charged with being an after the event accessory to the assault, and (iii) the fact that the penalty imposed, in relation to that charge, was a requirement to enter into a six month good behaviour bond.

    THE 15 AUGUST 2014 OFFENCES

14. At the time of these offences Mr DND bail’s conditions in relation to the March 2014 offences included an 8PM to 8AM curfew and a prohibition on the consumption of alcohol. However, late in the evening of Friday, 15 August 2014 he was in the vicinity of the Hurstville railway station and nearby shopping complex. In his evidence at the review hearing Mr DND said he had asked to borrow another young man’s phone. He conceded that the initial aspect of what followed was an overreaction on his part to the other person’s response. In any event, security footage of the incident apparently showed him hitting the man at the top of the escalators in the shopping complex. That provoked some retaliation, and a brief scuffle before the combatants separated. But Mr DND then followed the other person and his companions, and a further confrontation occurred. That confrontation involved further exchanges of punches.  Ultimately the fight was broken up when police transport command officers arrived at the scene. The record of the incident indicates that Mr DND was moderately intoxicated. He was initially dealt with by way of a fine and an 18 month good behaviour bond.

    THE OCTOBER 2014 CONVICTIONS

15. This was another incident when Mr DND’s willingness to breach his bail curfew and alcohol abstinence conditions led to further trouble. His version of events was that he had gone into a bottle shop and had put some cans in his pocket, because his hands were full. He said the shop attendant thought he was going to steal them, and demanded he wait in the shop while he called the police. Alarmed at that prospect, Mr DND threw some cans at the attendant and made off. He was arrested the next day, and ultimately fined over the incident.

    THE 21 DECEMBER 2014 OFFENCES

16. This was another incident that occurred when Mr DND was on bail in relation to the March 2014 train incident offences. He had gone into the liquor section of a supermarket at the Westfield shopping complex. The police fact sheets relating to the incident record Mr DND having put a bottle of vodka in his shoulder bag and walking past the cash register after ignoring an attendant’s request to inspect the bag. When initially confronted by the police, Mr DND claimed to have purchased the vodka in another shop earlier that day. However, security footage from within the store contradicted that explanation.

17. A further aspect of this matter, which Mr DND acknowledged in his oral evidence, was that Mr DND had previously been excluded from the Westfield shopping complex because of previous incidents of shoplifting. Apparently his defiance of that exclusion was the second of the 21 December 2014 offences.

    THE 15 OCTOBER 2015 OFFENCES

18. This was an incident that seems to have been sparked by the drunken behaviour of a friend with whom Mr DND had gone to South Cronulla beach. The friend began annoying a group of other people who were playing cricket on the beach. Ultimately he picked up a bat that the others had been using and demanded one of the other player’s sunglasses. When the demand was refused he unsuccessfully swung the bat at that person before punching him in the jaw a number of times. The two of them became involved in a wrestling struggle over the sunglasses. Up to that point Mr DND had been some distance away and uninvolved in what had happened. But once the scuffle became obvious he ran over towards the combatants. As he neared, he yelled at other cricket players who were converging on the scene. He said that if anyone threw a punch he would stab them. That threat ended any further physical confrontation from the cricket playing group. But one of them picked up the bat and threw it further away. This angered Mr DND’s drunken friend. He swore at the bat thrower and then head-butted him before walking off with the sunglasses and one of the player’s hats.

19. It is apparent from the details in the Schedule that Mr DND was arrested shortly after the incident, and spent the next four months on remand. Mr DND explained that he was initially charged with “robbery in company” and that was the reason he was held in custody before the charges were downgraded to the intimidation charge of which he was convicted. Notwithstanding the nature of that charge, which tends to confirm the view that Mr DND had not been involved in his drunken friend’s theft, the Minister’s final submissions involved the proposition that Mr DND’s role in the matter should be viewed as serious because he had facilitated his friend’s assault and theft. This matter had not been put to Mr DND in the course of his cross examination and had a doubtful basis in the version of events recorded in the police fact sheet version of the incident. Consequently I had Mr DND recalled and the proposition was put squarely to him. He denied it, and said his only purpose had been to prevent any further fighting and to get his friend away from the trouble he had started. That explanation was credible, consistent with the police fact sheet details and should be accepted. I specifically note that Mr DND denied that he in fact ever had a knife and there is not the slightest evidence to the contrary. Nor is there anything to suggest that he took any part in, or in any sense prompted, the violence that occurred either before or after his intervention.

20. I am conscious of the fact that, despite the essentially prophylactic role Mr DND appears to have played in the incident, he received a 10 month sentence for the intimidation offence of which he was convicted. Such a sentence seems inconsistent with that characterisation of the events, and contrasts with the four month sentence that he received, on the same sentencing occasion, when he was re-sentenced for the earlier 15 August 2014 affray offence. But there was no evidence of the sentencing remarks to explain the basis for either of those sentencing outcomes. Furthermore, the reality of what the sentencing actually involved seems quite inconsistent with the proposition that Mr DND’s role should be characterised in the way the Minister’s submissions contended. That reality, which becomes obvious from a careful examination of the relevant custody records and the details recorded in the Schedule, is that (i) Mr DND’s non-parole period for the offence expired five months before the July 2016 sentence date, (ii) he had already been released from custody at that time, and (iii) after his February 2016 release, he had never in fact been required to serve the four month “re-sentence” for the August 2014 offence. The ultimate practical reality of the sentences imposed on 26 July 2016 was that Mr DND was already at liberty and, at the very worst (i.e., if he had breached his parole conditions) could only have been required to serve a further one month period of imprisonment.

    THE JANUARY 2017 OFFENCES

1. These two offences appear to have been the result of Mr DND’s intoxicated overreaction to a police attempt to detain him in the course of investigating a reported incident at a nearby hotel. There is actually nothing to indicate that Mr DND had in fact been involved in the hotel incident. His lack of involvement may well explain his initial reaction - that the police officers had no reason to want to speak with him. His version of events was that he had simply gone to nearby shops to purchase some soft drink for his birthday party celebration. (His 21^st birthday was on 9 January 2017.) No doubt that was a factor influencing his indignation at having been confronted. In any event, he expressed his indignation to the police officers, took a half full brandy bottle from his pants and raised it above his head. This gave the police officers the impression he was about to use it as a weapon. That did not happen and he ultimately complied with the police request to put the bottle on the ground. But he was then told he would be placed under arrest. In order to prevent that occurring, Mr DND grabbed hold of a nearby fence and refused to cooperate. A struggle ensued before Mr DND could be handcuffed. In the course of that struggle apparently one of the police officers chipped a tooth. After Mr DND had been handcuffed and was being helped to his feet, he is recorded in the police fact sheet account as having lunged at one of the officers and attempted to bite. Again, the report of the incident described Mr DND as intoxicated. He was initially dealt with by way of a good behaviour bond for these offences.

   THE MAY 2017 OFFENCES

2. These six offences involved the dishonest use of a credit card. In his initial 20 August 2017 representations Mr DND had claimed he did not know the card had been stolen. He believed it belonged to a friend and claimed he had used it innocently. These claims were untrue, as Mr DND conceded in his evidence at the review hearing. In that evidence he explained that he had met up with a friend at the Kogarah Town Centre. The friend had attempted to use the credit card but had been thwarted by the merchant’s request to produce appropriate identification. The friend then gave the card to Mr DND, who had more success. Mr DND said that the two of them went on to see how much they could buy before the credit card was rejected. They managed to buy about $1,300 worth of goods. Mr DND was arrested the next day. Initially he denied any involvement, but later pleaded guilty to the offences.

3. The explanation Mr DND gave in his oral evidence is that of a spontaneous misadventure. It reflects a rather sanitised version of events compared to that recorded in the February 2018 psychological assessment. In the assessment he was recorded as having intentionally used the stolen card to buy food, clothes and items that he would sell on in order to obtain money to purchase methamphetamines. When he was asked to explain the apparent inconsistency between his evidence of the credit card incident and that detail in the February 2018 report Mr DND conceded that he had previously sold things to fund his drug use, and suggested that the psychologist had conflated events. However that may be, the more relevant point is that, as Mr DND also conceded, he had still been regularly using drugs at the time of this offence.

   SENTENCING REMARKS – AUGUST AND OCTOBER 2017

4. The six concurrent custodial sentences Mr DND received in August 2017 were his most significant. It is readily apparent from the sentencing Magistrate’s remarks that he was quite critical of Mr DND’s conduct and sceptical of the reality of his professed resolve to avoid future reoffending. In particular, the Magistrate noted that the May 2017 offences occurred just over a month after Mr DND had been released on parole following his March 2017 sentencing. The Magistrate dismissed, as a merely uncorroborated assertion, Mr DND’s claim that he had experienced a “light bulb” moment in his subsequent incarceration, and had resolved to address his drug and alcohol problems. The magistrate described Mr DND as having a “poor track record”, totally irresponsible, disentitled to any significant leniency (despite the fact that the amount involved in the credit card offences was only $1,120) and having a medium to high risk of reoffending.

5. The August 2017 sentences were the subject of a severity appeal by Mr DND. That unsuccessful appeal was rejected on 12 October 2017. On that occasion the District Court Judge noted that Mr DND’s January and May 2017 offences had both been committed when he was on parole following his release from prison in April 2017, and expressed surprise that he had only been dealt with by way of a bond for the January 2017 offences. The Judge noted that similar leniency had apparently been extended to Mr DND in relation to his March 2014 and October 2015 offences. Then, after referring to an August 2017 pre-sentence report, the Judge expressed the view that the August 2017 sentences were far from being “too severe”.

   CONTEXT RELEVANT TO THE AUGUST AND OCTOBER 2017 SENTENCING

6. It is necessary to put the 2017 sentencing remarks, and their dismissive view of Mr DND’s rehabilitative resolve, into context. That context requires consideration of (i) the November 2015 psychological assessment report to which I have previously alluded, (ii) pre-sentence reports of March 2105, September 2015, and August 2017, and (iii) a more recent psychological assessment in February 2018.

7. The November 2015 psychological assessment:- This was a report of an assessment carried out in early November 2015. Mr DND was on remand in relation to a robbery charge relating to the October 2015 incident. The report was commissioned for the purpose of his November 2015 sentencing for the March 2014 train travel offences.

8. Much of the first part of the November 2015 report summarises material aspects of Mr DND’s family and personal background. These are matters I address later in these reasons:- see paragraph 59 below. It is presently sufficient to note that the psychologist understood Mr DND to have been raised in an unstable family environment marked by “alcohol fuelled domestic violence”. With a degree of apparent understatement, the psychologist described Mr DND’s childhood and adolescence as “difficult” times during which he had lacked consistent support and guidance. As a result, he had “numerous developmental vulnerabilities”. The most significant of these were (i) his long standing substance abuse and, (ii) his antisocial behaviours and attitudes.

9. The most immediately relevant aspects of the November 2015 report are (i) its account of Mr DND’s intentions to address his behavioural problems, (ii) its recommendations about the most appropriate way of giving effect to those intentions and, (iii) the results of a psychometric test the psychologist administered.

10. In relation to Mr DND’s rehabilitative intentions, the November 2015 report noted Mr DND’s disclosed history (between the ages of 14 and 18) of abuse of prescription medications including benzodiazepines and oxycontin, and regular use of MDMA. But the report proceeded on the basis that Mr DND was motivated to change his behaviour and that, following the December 2014 birth of his daughter (“MAFD”), he had enjoyed some degree of success. The psychologist appears to have understood that Mr DND had been living with CP – MAFD’s mother – at her aunt’s house, and to have been a supportive parent. She noted Mr DND’s claims to have stopped using drugs since MAFD’s birth, and perhaps accepted those claims – despite their apparent contradiction in the contents of a September 2015 pre-sentence report. (In relation to that contradiction, there is nothing in the November 2015 report to reveal the psychologist’s awareness of the fact that MAFD had in fact been removed from her parent’s care early in October 2015.) Based on Mr DND’s claims, his interaction with her, and the psychometric test results, the psychologist described Mr DND as having insight into his substance abuse problems, motivated to change and aware of his need for supportive treatment. She noted that Mr DND claimed to have self-referred to a drug and alcohol counselling service in 2014 and to have attended five sessions.

11. The psychologist went on to describe Mr DND’s offending as “conceptualised within the context of maladaptive personality functioning and poor consequential thinking skills, further disrupted by a substance use”. The psychologist considered that Mr DND needed treatment in relation to his drug and alcohol abuse, antisocial attitudes, anger management, and lack of consequential thinking. She recommended that Mr DND participate in various rehabilitation programs – both custody and community based – but noted his problematic previous participation. She went on to say that “given his personality style” he would likely find any treatment process “fairly challenging”. 

12. A significant part of the information that influenced the views expressed in the November 2015 report came from the psychologist’s interpretation of the results of a psychometric test she administered. That test was the Personality Assessment Inventory. It is a 344 question based interrogation used to assess personality and mental health. Mr DND’s test responses indicated significant elevations across a number of the test “domains” within the questionnaire structure. The psychologist opined that these elevated results were consistent with Mr DND having the profile of a person who was “embittered and angry and had a history of acting out behaviours, including impulsivity aggression and substance abuse”. Such a person was likely to have a number of dysfunctional personality attributes, including antisocial and borderline traits. Those attributes were likely to interfere with their ability to have positive social relationships, and correspondingly increase the likelihood of their conduct involving interpersonal aggression, destruction of property and other criminality.

13. Overall, the picture painted by the psychologist in the November 2015 report was that of a young man with a troubled background and “dysfunctional personality attributes”. It is clear, from the nature and extent of the psychologist recommendations about his need for future treatment, that significant measures and efforts were required if “his risk for recidivism is to be ameliorated”. Those, and similar comments, make it impossible to avoid the conclusion that the psychologist regarded Mr DND as requiring a great deal of assistance, and being at a significant risk of re-offending – as he subsequently did.

14. The pre-sentence reports:- It is reasonable to infer that the March 2015 pre-sentence report noted in the November 2015 psychologist’s report commented on Mr DND’s history of drugs and alcohol abuse, and its relevance to the August 2014 “affray” offence. It likely accounts for the related rehabilitation conditions contained in the good behaviour bond required following Mr DND’s May 2015 conviction. The 24 September 2015 pre-sentence report specifically noted Mr DND’s then ongoing drug and alcohol abuse. In that respect the report conflicted with the drug abstinence claims Mr DND had regularly made to parole / supervision officers in the early part of 2015 and that he had repeated to the author of the November 2015 psychologist’s report. Given the intervening fact of MAFD’s October removal to CP’s mother’s care, and that fact being unremarked upon in the November 2015 report, Mr DND’s abstinence claims are not a reliable account – at least of his conduct in the latter part of 2015. Their unreliability is rather confirmed by the apparent contents of the August 2017 pre-sentence report, in which Mr DND is reported to have failed to comply with previous rehabilitation counselling requirements and to have acknowledged that his methamphetamine use, in particular, had become a serious problem that he needed to address.

15. The February 2018 psychological assessment:- Mr DND’s solicitors commissioned this report to support his revocation submissions in response to the Minister’s invitation. The report was based on some records of his offences, and details obtained in the course of a telephone interview with Mr DND in January 2018.

16. The introductory part of the February 2018 report provides an important perspective. It records Mr DND conceding that his drug use had continued right up until the time he had been arrested in May 2017. It also attributes to him acknowledgements that his chronic drug use, and the behaviour associated with it, had been responsible for (i) the October 2015 protection order that had placed MAFD in CP’s mother’s care and had precluded both CP and Mr DND from unsupervised access to her, (ii) Mr DND’s volatile relationship with his own mother, and (iii) CP’s ultimatum that Mr DND’s drug use had to cease for their relationship to continue. Those acknowledgements support the scepticism I previously expressed about the reliability of Mr DND’s November 2015 claims to have been drug abstinent after MAFD’s birth:- see paragraph 53 above. That scepticism is further justified by Mr DND’s July 2018 statement in the present proceedings, where he (i) conceded his ongoing drug use during CP’s pregnancy and (ii) explained that FACS October 2015 intervention had been prompted by “a family member’s” concern about his drug use.

17. The psychologist carried out an assessment of Mr DND’s recidivism risk by using several psychometric assessment tools. One of them was the Violence Risk Appraisal Guide. It is an actuarial tool that uses information about 12 aspects of a person’s characteristics to provide a basis for assessing their risk of violent re-offending. Before interpreting Mr DND’s results the psychologist noted that, given the actuarial and historical information on which the Guide relied, its results did not “directly correspond to” the recidivism risk of any particular individual. Subject to that cautionary explanation, the psychologist noted that Mr DND’s results were consistent with him having a significant risk of reoffending.

18. Another actuarial tool the psychologist used was the LSI -R (Level of Service Inventory- Revised). She described the LIS-R as the “most empirically evidenced and widely used risk assessment tool”. Mr DND’s LSI-R result was a numerical score of 20. The psychologist explained that, based on the commonly accepted and applied actuarial norms underlying the tool, such a score indicated a person who had a moderate to low risk of reoffending, and a high level of rehabilitation need. The psychologist explained that in the North American normative sample, about one third of people whose score was in this range had re-offended.

19. The psychologist recorded the appearance (substantially based upon his assertions) that Mr DND was highly motivated to change his previous behaviour. Despite commending that apparent motivation, the psychologist said the reality was that he would require substantial rehabilitation support, including educational and vocational training; life skills training; social skills training, drug rehabilitation and traffic offender education. He would also need assistance in helping him better regulate his mood and develop critical decision-making skills. The psychologist considered that overall, Mr DND had a medium to high risk of reoffending.

    MR DND’S PERSONAL CIRCUMSTANCES

20. I referred at the outset to the circumstances of Mr DND’s February 1997 arrival, and some aspects of his subsequent upbringing, in Australia. I have also alluded to the fact that his upbringing was troubled:- see paragraph 47 above. That allusion requires further description.

21. Mr DND’s parents separated a few years after their arrival in Australia. His father moved back to New Zealand and, apart from the holiday visits to which I have referred, he had relatively little contact with him thereafter. During his early childhood Mr DND lived with his mother and elder brother, mostly in accommodation shared with Mr DND’s aunt. By late 2005, when he was eight or nine years old, his younger stepbrother had been born, as a result of what proved to be an unsatisfactory and impermanent relationship his mother had entered into. Throughout that period, according to the history recorded in the November 2015 psychological assessment report, Mr DND’s domestic environment exposed him to what he perceived as excessive physical discipline from his mother and a degree of “alcohol fuelled domestic violence”. It certainly involved a financial struggle. Somewhere around 2008 / 2009, the three boys and Mr DND’s mother moved into separate rented accommodation. A few years later, Mr DND’s mother began to obtain regular employment.

22. In addition to the difficulties of his home life, Mr DND’s early school years were somewhat unhappy. He saw this as a result of being teased about his size. But he seems to have partly overcome this with his participation in, and prowess at, rugby. All things considered, he progressed reasonably until his early adolescent years. That was when his troublesome behaviour, drug taking, and alcohol abuse began.

23. According to the history he provided for the November 2015 psychological review, Mr DND began occasional alcohol abuse in his pre-teens. By the age of 13 he was drinking every weekend. At 15 he was a very regular drinker. He typically drank until he was intoxicated. In his later school years he regularly drank before and after school. Mr DND’s brother had introduced him to cannabis when he was 14 or 15. Within six months he had become a daily cannabis user. He even took cannabis to school and smoked it there. That regular use continued until sometime in early 2014. Mr DND’s regular MDMA use had also begun, perhaps when he was about 14, and certainly by 2012, when he was sixteen. In the following years he had a history of regular use of MDMA and abuse of prescription medications, including benzodiazepines and oxycontin. According to the February 2018 report history, in the three years before his May 2017 incarceration, he had been using amphetamines daily. And in the same report, Mr DND acknowledged that his offending increased as his methamphetamine use and dependence developed.

24. As Mr DND’s substance abuse and behavioural problems increased, and his offending began (see the Schedule), household tension saw Mr DND regularly having periods where he either left, or was excluded from, his mother’s home, and slept in refuges or at friends’ homes.

25. It is difficult to get a confidently accurate understanding of Mr DND’s circumstances in the last few years of his schooling. On the one hand, what he told the assessing psychologist in November 2015 was that he had continued with a kind of “itinerant” existence until he moved into stay at CP’s mother’s house during CP's pregnancy in 2014. But there was also evidence that he had started his relationship with CP when they were both about 15 (i.e., around 2011) and still at school. In the following years she had regularly lived with him at his mother’s home. Furthermore, despite the reported episodes of Mr DND’s itinerant existence and regular school truancy, Mr DND did complete his HSC in January 2014.

26. Both Mr DND and CP were only eighteen when MAFD was born in December 2014. The details of their relationship and circumstances in the following months are again difficult to reconstruct with any confident accuracy. Part of the difficulty arises from the fact that an account of events contained in Mr DND’s mother’s statements in July 2018 placed them as having occurred in 2016, whereas the context and the sequence of events she described suggests they actually occurred in 2015. That appearance appears to be consistent with Mr DND’s evidence and with the sequence of events that emerged from Mr DND’s mother’s oral evidence.

27. On the basis of that appearance, and information contained in Mr DND’s parole / supervision reporting records, what happened was along the following lines. After MAFD’s birth, CP went back and stayed with her own mother. By February 2015, Mr DND, CP and MAFD were back living with his mother, but they moved to an aunt’s house sometime in March 2015. That appears to have continued for several months, but ended because of the aunt’s disapproval of Mr DND’s continued alcohol and drug use. Mr DND and CP then returned to CP’s mother’s house. For a while CP’s father assisted him in getting to work. But that arrangement also ended after a few months – when CP’s father got injured and was unable to work. All of these movements meant that, according to Mr DND’s mother’s second July 2018 statement, Mr DND, CP and MAFD had “moved into three different homes” during 2015. As a result of all of the dislocation, and the difficulty of continuing to live at CP’s mother’s home, Mr DND’s mother allowed them to come and stay with her. According to her oral evidence, that occurred in about August 2015.

1. That residential arrangement seems to have quickly descended into turmoil, marked by hostility between Mr DND and his mother. That turmoil is likely to have been contributed to by (i) the underlying stress of two very young parents in difficult circumstances, (ii) Mr DND’s mother’s own personal troubles (which included her own drug use and a dispute over the custody of her youngest son  JJD), and (iii) Mr DND’s continued drug taking. Ultimately, the Department of Family and Community Services (“FACS”) took action. In early October 2015 FACS removed MAFD from CP and Mr DND’s care. She was placed in the care of her maternal grandmother. The conditions of that arrangement appear to have precluded both CP and Mr DND from unsupervised contact with MAFD.

2. When Mr DND was released in February 2016, his bail conditions required him to live with his mother. But within months he had moved out with his elder brother and CP into rental accommodation. That arrangement ended when they failed to pay the rent. After that, Mr DND and CP fluctuated between refuges and returns to CP’s mother’s home. In all the turmoil, the relationship between Mr DND and CP deteriorated. A parole report of July 2016 notes that they had separated. It also records Mr DND’s distress at the result of a friend’s death, and his temporary return to live with his mother and JJD. In her October 2017 letter, Mr DND’s mother said he had been homeless for a substantial part of 2016. (It was apparently after that, in the latter part of 2016, that Mr DND’s continued alcohol abuse, and drug taking, led to his various offences between August 2016 and May 2017). By about October 2016, CP had returned to live with her mother. Mr DND said he continued to visit her and MAFD there but he was not welcome to stay.

3. Prior to his May 2017 offences and arrest, it does seem that Mr DND had made some rehabilitative efforts. The first of those was before MAFD’s birth in 2014. According to the history he gave at the time of the November 2015 psychological assessment, he had self-referred to a drug and alcohol counselling service at the St George Youth Services and attended five sessions there. He also claimed to have moderated his alcohol use and stopped his drug use at about that time. The latter claim cannot be accepted as completely reliable, given its inconsistency with both the November 2015 pre-sentence report and the concession referred to earlier:- see paragraph 55 above. But the fact of Mr DND’s self-referral, the contemporaneous supervision reports in early 2015, and his mother’s evidence that he made some effort to improve his behaviour, do suggest that he then had a degree of contemporaneous insight into his offending, and made some, albeit unsuccessful, attempt to regularise his conduct. Both of those impressions – insight and difficulty – are consistent with the psychologist’s comments in their respective 2015 and 2018 reports. The 2015 report noted that Mr DND’s psychometric test result profile suggested he was motivated to change, but his “personality style” suggested he was likely to find the process “fairly challenging” and difficult.

4. After his April 2017 prison release, Mr DND explicitly acknowledged (contrary to accounts in previous supervision reports in 2015) that he needed assistance to address his drug and alcohol use. He enrolled in a positive parenting course and he attended several sessions. He also took steps to get a “white card” that would enhance his prospects of employment in the construction industry. Consistent with those initiatives, the 2018 report commented that Mr DND had a commendably high motivation to change, but it went on to observe that he was very young, and psycho-socially vulnerable - because of his long standing drug dependence, limited vocational skills and impulsivity. Those factors meant that he had significant rehabilitation needs and that he would require a supervised, highly structured rehabilitation and treatment program.

5. Mr DND’s mother gave tearful evidence in which she sought to characterise Mr DND’s conduct and attitude as having improved during CP’s pregnancy in 2014. She perceived herself, and more accurately, her own stressed behaviour and hypercriticism of Mr DND, as responsible for the circumstances that led to FACS’ October 2015 intervention. She also perceived that intervention, with its substantial preclusion of contact between Mr DND and MAFD, as a significant factor in Mr DND’s subsequent decline into further offending in 2016 and 2017.

6. Mr DND’s mother’s evidence displayed her moving anguish over the difficult times Mr DND has encountered in his upbringing and about her own responsibility for the relationship breakdowns and dysfunction that had marred that upbringing. But I doubt the traumatic relationship difficulties that appear to have preceded FACS’ intervention in October 2015 can properly be viewed as solely attributable to what Mr DND’s mother alluded to as her own unreasonable and intemperate behaviour towards him and uninfluenced by his own unacceptable conduct. Three matters fuel that doubt. First, Mr DND concedes that he was continuing his substance abuse and he reported to the psychologist in January 2018 that it had been a major factor in FACS intervention. Second, a condition associated with FACS’ intervention precludes Mr DND from unsupervised access to MAFD – a condition that is unlikely to have been imposed without compelling reason. Third, CP seems to have terminated her relationship with Mr DND, or at least put it aside, because of his continued substance abuse and offending.

   CONCLUSION IN RELATION TO THE PROTECTIVE CONSIDERATION

7. The conclusion required by an overall assessment of Mr DND’s past offending, his personal circumstances, and the psychological assessments to which I have referred, is that Mr DND has a significant risk of re-offending. His past behaviour, particularly since the rehabilitative resolve he asserts manifested itself (unsuccessfully) in 2014, and which he avowed at the time of the November 2015 psychologist’s assessment, does not inspire confidence about the likelihood of his future lawful conduct. Whether that risk is described as “low to moderate” (based on Mr DND’s January 2018 LSI-R score) or “medium to high” (as both the August 2017 sentencing Magistrate, and the February 2018 psychologist’s report, considered) his risk of re-offending is sufficiently significant that it requires not only considerable rehabilitative effort on Mr DND’s part, but a good deal of support.

8. The conclusion that Mr DND has a real and significant risk of re-offending is not avoided by the subjective credibility of his current assertions about wanting to put his life in order, and fulfil his parental role. (Those assertions include (i) explanation of the parenting course he commenced in April 2017 after his release from prison, (ii) his uncontradicted claims to have been substance abstinent since his May 2017 incarceration, and (iii) his current preliminary attempts to secure participation in a residential rehabilitation program.) Nor is that conclusion avoided by the appearance that Mr DND’s mother is committed to supporting him, and has managed to secure for him an offer of employment. Those matters are important factors that are capable of assisting Mr DND, but they are insufficiently persuasive to avoid the conclusion required by a balanced assessment. So far as employment is concerned, Mr DND appears in the past to have had little difficulty in obtaining such employment as he was motivated to seek. So far as his relationship with his mother is concerned, the observation has to be made, without expressing any view about their respective conduct, that it has been problematic.

9. What I have said in the preceding paragraph addresses the significant risk of Mr DND re-offending. It is also necessary to consider the harm risk associated with any future offending. In that context it is appropriate to acknowledge that few of Mr DND’s offences have involved intentional violence or significant injury. His most significant violence related offences were those in August 2012 and March 2014. But in neither of those matters was he the principal offender. On the other hand, the circumstances of the August 2014 offence and his 9 January arrest illustrate situations in which Mr DND’s impulsive disinhibition when intoxicated could involve personal injury. The same view at least potentially applies to Mr DND’s alcohol related driving offences in August and December 2016. A balanced view of those offences requires recognition that by far the largest sentence (9 months) imposed in March 2017 related to the unlicensed driving offence – rather than to the “mid range PCA” offences. It also requires regard to the fact that those two offences were “mid range” – rather than high. Nevertheless, the same balanced view also requires recognition that repeated alcohol affected driving offences carry an inherent and unpredictable risk of significant harm.

10. Any future offending by Mr DND is likely to be related to his substance abuse and the kinds of dishonesty involved in his May 2017 offences (and the similar dishonesty he conceded in his oral evidence and to the February 2018 reporting psychologist). The individual amounts involved in Mr DND’s dishonesty offences do not appear to have been large (a matter on which the August 2017 sentencing Magistrate remarked) but a risk of repeated dishonesty associated with chronic substance abuse, approaches the limits of low tolerance articulated in the Direction no. 65 principles. In relation to the risk of violent harm from any future offending by Mr DND, harm of that kind is much more likely to be an unintended, rather a deliberate consequence of his conduct. That consideration is a relevant, but not determinative, consideration.

11. Mr DND’s upbringing in Australia, and that fact that he has lived here for almost all his life, are circumstances that Direction no. 65 contemplates as permitting, and likely to require, a significant degree of tolerance in relation to the risk of his harmful future offending. That tolerance is moderated, but not eliminated, by the duration of his period of offending, the number of his offences, and the circumstance that his most recent offences occurred so soon after his release from custody and in connection with the resumption of his drug abuse. But even allowing for that moderated tolerance, when regard is had to the significant risk of Mr DND re-offending and the recency of his substantially untested (though credible) rehabilitative resolve, the primary protective consideration weighs, on balance, against the restoration of his visa status.

    COMMUNITY EXPECTATIONS

12. The sentiment of community expectation of lawful conduct by non-citizen visa holders is expressed in Direction no. 65 cl 13.3(1). It is also evident in the principle statement that a visa is granted as a privilege with the corresponding expectation of the visa holder’s respect for Australia’s institutions, and harmlessness to its people and community: see cl 6.3(1).

13. Clause 13.3(1) contemplates the possibility that maintaining a visa cancellation decision may be appropriate because the nature of the non-citizen’s offences “is such that the Australian community would expect that the person should not hold a visa”. This contemplation necessarily takes into account the “principle” of an expectation that a visa should be cancelled where the person has committed “serious crimes”: see cl 6.3(2). The imperative implicit in the use of “should” in cl 6.3(2) is emphatic, and the statement of expectation is inherently prescriptive. In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J said that:

    [76] In substance this consideration is adverse to any applicant. … it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

14. The YNQY decision involved a young South Sudanese man who had been convicted of 15 violent offences involving armed robbery and had been sentenced to imprisonment for almost six years. In that particular passage in the YNQY judgment, Mortimer J was addressing an argument that (i) the Tribunal had failed to make findings about community expectation, (ii) the failure constituted jurisdictional error, and (iii) the failure had deprived the applicant of the possibility of a favourable decision. Although Mortimer J allowed the appeal on other grounds, this particular argument failed. Her Honour said that even if the Tribunal’s failure to make specific findings about community expectation constituted jurisdictional error, that failure could not have resulted in a more favourable outcome – because it was “inevitable” that community expectation would weigh against the applicant.

15. Mortimer J’s observations that cl 13.3(1) operated as a kind of deeming provision, and was inherently adverse to a former visa holder, were (i) directed at the circumstance of a person who had convictions of “serious crimes of a certain nature” and, (ii) made in the context of the unarguably “serious” violent offences of which YNQY had been convicted:- (see Direction no. 65 cl 13.1.1(1)(a) and paragraph 27 above). Mortimer J’s observations should not therefore be extrapolated as intended to convey an inflexible expectation of visa status refusal. Her Honour was not expressing any view about the weight that should permissibly be given to community expectation where a visa holder had committed serious offences. Nor was Her Honour even addressing the situation where the categorisation of a visa holder’s offences as “serious” was contentious. The explicit statement in cl 13.3(1) that non-revocation “may be appropriate”, and the postulation that “the nature and character” of the person’s offences would trigger a community expectation of non-visa status, is not an inflexible direction and does not supplant consideration of the totality of primary and other relevant considerations.

16. When cl 13.3 is read as a whole and applied in a context where all relevant considerations must be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation requires a non-revocation decision. Community expectation will depend upon consideration of “the nature and character” of the offences. Where that consideration triggers the non-visa status expectation, it is a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight contributes determinatively to assessment of the preferable outcome of the revocation discretion, depends on the totality of the relevant circumstances.

17. In the present case, some of Mr DND’s offences and convictions merit characterisation as “serious” within the exegesis provided in cl 13.1.1(1)(b). This applies to his August 2012 robbery offence, his August and December 2016 “mid range PCA” driving offences, and to his January 2017 offences. I do not regard it as the appropriate characterisation of his August 2014 and October 2015 offences – given the circumstances they involved and the actual penalty they attracted. However, Direction no. 65 cl 13.1.1(1) requires regard, for the purpose of assessing the seriousness of offending, to the frequency of a person’s offending, the cumulative effect of that sentencing and to the sentences imposed. When those matters are taken into account, the number and diversity of Mr DND’s offences, despite the several instances of leniency that have been extended to him, together with the promptness of his re-offending after his April 2017 release from prison, do contribute to satisfaction that, in his case, the community expectation would be that he should not hold a visa. The reality is that Mr DND has conspicuously failed to purse effectively the rehabilitative opportunities that have either been proffered to him or that he has been encouraged to pursue.

    BEST INTERESTS OF CHILDREN

18. There are five minors whose interests require consideration. They are (i) Mr DND’s 15 year old stepsister DK, (ii) his younger stepsister, 11 year old AK, (iii) his 12 year old stepbrother JJD, (iv) his three your old daughter MAFD and, (v) his 14 month old son RLD.

19. DK’s interests:- DK is Mr DND’s paternal stepsister. She grew up in New Zealand and moved to Australia sometime in either late 2017 or early 2018. It follows from those circumstances that she has had little direct contact with Mr DND, apart from during her occasional holiday visits to Australia. She assessed Mr DND as a caring and loving person and someone who was good company in her interactions with him. She expressed regret at the prospect of his permanent visa cancellation because it would likely frustrate her desire to get to know him better, and to compensate, to some degree for the lost opportunities whilst she was growing up in New Zealand.

20. There is a general sense in which DK’s best interests favour Mr DND’s retention of his former visa status. But in a situation where DK appears to be living with and supported by her parents, Mr DND has played no significant part in her upbringing and development, and is unlikely to do so, to any significant extent, in the future. Those best interests are not factors that weigh significantly in favour of the retention of his visa status.

21. AK’s interests:- AK is DK’s younger sister. The available information does not provide any meaningful basis to differentiate her situation from that of DK – other than to note that her younger age makes her relationship with Mr DND perhaps less substantial than that of DK. Like DK, and for substantially the same reasons, her best interests may tend to favour Mr DND’s retention of his visa status, but not to any significant extent.

22. JJD’s interests:- Twelve year old JJD is an Australian citizen. In a short note he submitted he referred to Mr DND as a “brotherly figure” who had “always” looked after him. There must be an element of over-statement in that description, given the evidence of Mr DND’s episodes of “itinerant” lifestyle, his periods of incarceration, his drug use, his volatile relationship with his mother and the nature of the conduct likely to have influenced FACS’ October 2015 intervention. Nevertheless, it does seem that Mr DND is an important factor in JJD’s life. Mr DND’s mother gave evidence about Mr DND’s role in helping JJD get to school, contributing to his care, and in providing him with companionship, particularly when she had work commitments.

23. Beyond those generalities there is little evidence that, at least in recent years, Mr DND has made any significant tangible contribution to JJD’s welfare and upbringing. Given the difficulties he has encountered since MAFD’s birth in December 2014, including the substantial periods when he has been living separately from his mother and brother, and had his own concerns with the welfare of CP and MAFD, it is unlikely that he has made any significant contribution. Mr DND’s mother revealed that she has encouraged JJD to have good family ties with his own father, notwithstanding the breakdown of her own relationship with the father. She said that JJD has a fulfilling relationship with his father and with his grandparents.

1. Given the affection expressed in JJD’s note, and the element of responsible care vouched for by Mr DND’s mother, it is likely to be in JJD’s best interests for his brother to remain in Australia. But the extent of those bests interests is circumscribed by the realities that (i) Mr DND is not one of JJD’s primary carers, (ii) he is unlikely, given his current lack of means, problematic future prospects and parental responsibilities to MAFD and RLD, to play a significant future role in providing  tangible support for JJD’s welfare and development, (iii) JJD appears to have a constructive relationship with each of his parents, and with his father’s family, and (iv) the extent of Mr DND’s future constructive influence on JJD’s depends on the uncertain extent and timing of his own successful rehabilitation.

2. MAFD’s interests:- I have already alluded to the fact that MAFD was born in December 2014, and removed from CP and Mr DND’s custody in early October 2015. Since then the terms of the operative protection order have precluded Mr DND from unsupervised access to MAFD, apparently as a result of his chronic and ongoing drug addiction and behavioural issues.

3. Since October 2015 MAFD has lived with her maternal grandmother. During that time Mr DND appears to have little regular significant contact with her. In the early part of 2016 he and CP lived in rental accommodation with his brother. Later in 2016 Mr DND was either homeless or living with his aunt. Consistent with the care order conditions, he was a merely occasional visitor to MAFD at CP’s mother’s house. In January 2017, just after MAFD’s third birthday, Mr DND was taken into custody. Since then he has only been at liberty between early April and mid-May 2017.

4. The existence of the FACS protection order, with its restrictions on Mr DND’s unsupervised access to MAFD is not a good starting point from which to arrive at a conclusion that Mr DND’s continued Australian presence is in her best interests. It is made worse by CP’s declaration that, unless and until Mr DND demonstrates his ability to abstain from substance abuse, and get his life in order, she has no interest in either resuming a relationship with Mr DND, or encouraging his greater access to MAFD. On the other hand, CP did give evidence that if Mr DND were to succeed in implementing his rehabilitative resolve, she would entertain the possibility of re-establishing their domestic relationship – even to the extent of joining him in New Zealand..

5. So far as the evidence reveals, MAFD is currently satisfactorily cared for by her maternal grandmother. CP has no current plans to alter that arrangement. It may be inferred that there is no evidence of any particular difficulty about that current arrangement, nor any immediately apparent reason why it is likely to alter in the near future. On the other hand, it is reasonable to expect that MAFD will eventually be returned to CP’s care.

6. As the Minister conceded, there is a general sense in which MAFD’s best interests are likely to be best served by her father’s continued Australian presence. The Minister’s submissions expressly did not dispute the importance of a father-child relationship. That absence of dispute necessarily accepted that it was a very large step to make a decision that would likely permanently deprive two young children of their father’s physical presence. It is an even larger step when those children have a very young mother who herself is in difficult circumstances. But the practical content of MAFD’s best interests depends significantly on the prospect of Mr DND’s successful rehabilitation, and that is problematic – for the reasons to which I have already alluded.

7. RLD’s interests:- RLD was born in June 2017, when Mr DND was in custody. He lives with CP, in her rented accommodation. Mr DND’s contact with him has only been in the course of occasional visits during his incarceration and current immigration detention.

   CONCLUSION ON MINORS’ BEST INTERESTS

8. The best interests of the three eldest minor children (DK, AK and JJD) marginally favour Mr DND’s retention of his visa status. But his limited role in the lives of DK and AK, in the context where there is no evidence of his substantial past or likely future contribution to their development, their interests are of little determinative significance. There is a stronger factual basis for attaching greater significance to JJD’s best interests, given their shared upbringing and affection. But the proper characterisation of Mr DND’s positive contribution to JJD’s development is that it has been peripheral in recent years, and likely to remain so in the foreseeable future.

9. The best interests of MAFD and RLD require anxious consideration. If there was a confident basis for the prospect of Mr DND re-establishing himself, restoring his relationship with CP, and achieving constructive normality in their domestic situation, there would be an overwhelming justification for the conclusion that their best interests require the retention of his visa status. There is a realistic prospect of that outcome (given Mr DND’s currently asserted resolve, the comments in the psychologists’ 2015 and 2018 reports, and the emphatic incentive provided by the current proceedings), but it has to be regarded as problematic, at least in the foreseeable future.

10. Taking all these considerations into account, it is proper to conclude that the best interests of each minor child favour the retention of Mr DND’s visa status.

    AUSTRALIAN TIES

11. It is obvious from the details of Mr DND’s 1996 arrival, upbringing, and immediate family that he has significant Australian ties. Although his parents and elder brother are all New Zealand citizens, they are all also Australian residents. His younger brother is an Australian citizen. So too are CP and his two children. All his developmental familiarity and ordinary living experiences have been as a member of the Australian community.

12. Part of those experiences has involved Mr DND in reasonably consistent employment. When he was around 14 or 15 years old he had worked for a removal company during his school holidays. In 2012 and 2013, in the last two years of his schooling, he worked on weekends in a café. After his December 2013 release from detention, and shortly after he turned 18, he worked for a furniture removal company for about 12 months. At some stage (in mid-2015) he worked briefly as a labourer for a civil engineering company. There is also evidence that he worked at one stage for a tree lopping business. Immediately before he went to prison in May 2017 he had been working as a casual labourer for a furniture delivery company. If he retains his visa status, he has a firm offer of employment with his mother’s employer.

13. It is clear from Mr DND’s mother’s evidence that she will be deeply distressed if Mr DND does not retain his visa status. She is acutely aware of the difficulties she experienced as a young girl who was orphaned at a very early age, of her own difficulties as a single parent in Australia, and of her own perceived shortcomings as a mother struggling to cope in the difficult circumstances she had to endure. She perceives herself (whether justifiably or not I express no opinion) as significantly responsible for the difficulties Mr DND experienced after MAFD’s birth and FACS’ 2015 intervention. It is likely that Mr DND’s enforced and likely permanent departure from Australia would distress her deeply, and re-inforce the maternal inadequacies she tearfully expressed in her evidence. Such is her apprehended distress that she envisaged being confronted with the ultimate choice of deciding to remain in Australia, where she would prefer to live, or returning to New Zealand and trying to re-establish herself there after a twenty year absence. It is a choice that, on balance she would be likely to make by remaining in Australia.

14. Complicating both Mr DND’s own personal circumstances, and his mother’s difficulties, is the situation of his elder brother, who also has a history of drug use. At some stage (perhaps by early 2015, and certainly prior to November 2015) Mr DND’s brother was diagnosed with schizophrenia, apparently as a result of drug use. There is some evidence that Mr DND’s brother’s psychotic / schizophrenic illness is severe, that he would be distressed by his brother’s departure and that he is most unlikely to return to New Zealand. The extent of that evidence was, however, brief and lacking in detail. In those circumstances, there is no adequate basis for embracing a conclusion that Mr DND’s exclusion from Australia would be likely to involve a serious risk to his brother’s mental health and welfare.

    RELOCATION HARDSHIP

15. There is no evidence that Mr DND has any physical or psychological injuries or illness that would hamper his ability to establish himself in New Zealand – despite his history of substance abuse and his rehabilitative needs. The 2015 psychologist’s report described him as having reasonable intelligence and social skills. The 2018 psychological report noted his success in obtaining his Higher School Certificate. That was despite his acknowledged truancy, lack of application, and difficult personal circumstances.

16. The evidence is that Mr DND has no family or friends in New Zealand. His father has two sisters who live in New Zealand and he may have some New Zealand connections, given his comparatively recent return to Australia with his children (AK & DK). But there is no evidence to attach any practical significance to that possibility. It follows that Mr DND’s departure to New Zealand would confront him with significant challenges, similar to, but likely greater than those he would encounter in his rehabilitative endeavours were he to remain in Australia. But in either location, Mr DND’s good health, and his past apparent success in being able to obtain and retain employment when motivated to so do, would tend to suggest that any difficulties he would be likely to encounter would not be particularly significant.

    VICTIM IMPACT

17. There was no evidence pointing to any significant impact on any of the persons affected by Mr DND’s various offences. Nor was there a basis for any specific inferential finding that any of his personal conduct in relation to any of his offences had resulted in significant harm.

    CONCLUSION

18. The protective concerns I have addressed, and the community expectation adumbrated in cl 13.3(1) of Direction no. 65 favour the cancellation of Mr DND’s visa. They do so to varying extents. The community expectation does so more strongly, given the number and nature and diversity of Mr DND’s offences. On the other hand, notwithstanding the significant risk of his re-offending, his youth, his Australian upbringing, and the limited evidence of significant physical harm from his offences, contemplate, and permit, a significant level of tolerance being extended to him.

19. The best interests of JJD, MAFD and RL point towards the restoration of Mr DND’s visa. The Minister’s submissions expressly accepted that proposition. Although that acceptance was expressed as a matter of generality, it is a generality that can be given obvious practical content – in addition to the intangible, but none the less significant “father-child” relationship whose importance the Minister’s submissions accepted. If he were to be able to implement his currently asserted rehabilitative resolve, and take advantage of the employment that is immediately available to him, Mr DND would be in a position to make a significant positive contribution to his young children’s welfare. Such a contingency would also likely benefit CP. It would allow her to share her parental responsibilities, increase the family income, increase the prospect of being re-united with MAFD, and likely improve her prospects of obtaining employment. Those are prospects that merit, and to which I have given, anxious consideration. I have done so against the background of awareness that maintaining the visa cancellation decision has a likely permanent consequence, whereas visa restoration would not preclude future cancellation, if Mr DND were to re-offend. I have also proceeded on the basis that, notwithstanding CP’s willingness to entertain the possibility of ultimately moving to New Zealand, it is an unlikely outcome. She has no current plans to obtain MAFD’s care from her mother, and although she would entertain a future relocation, she is unlikely to accept a long term separation from MAFD. She also has her parental support in Australia, and no connection with New Zealand. The prospect of her moving to New Zealand is a mere, and unlikely, possibility.

20. Having recognised the importance of the “father-child” relationship, and the large step involved in a visa decision that would likely involve permanent parental separation, the Minister’s submissions were to the effect that the “real possibility” of Mr DND’s future relapse into substance abuse, and re-offending would or could have a significant adverse effect on his children and on JJD. That possibility may be accepted, and it is a real concern given the reality of Mr DND’s risk of re-offending. On the other hand, it is clear and uncontentious that, as things presently stand, it is in the best interests of the three children (and especially MAFD and RLD) for Mr DND to remain. It is also the case that some real measure of tolerance is appropriate to be extended, given both that prospect and Mr DND’s long term Australian residence and upbringing. Finally, it is clear that any decision to revoke the visa cancellation decision is far from irreversible. If the contingency of re-offending occurs, with its apprehended potential to adversely affect the best interests of the three children, those interests, and the protective objects of the visa cancellation decision, will be capable of being furthered without emphasis on the tolerance that, in the current circumstances, is appropriate.

21. The conclusion to which I have come is that whilst Mr DND’s currently asserted strengthened rehabilitative resolve is recent, and its prospects of success problematic, the preferable outcome is to revoke his visa cancellation. That outcome is not one of giving Mr DND another chance. It is one of placing determinative consideration on the best interests of the three children and especially those of MAFD and RLD. Without a constructive father figure, and with a young mother who seems to have had her own disrupted adolescence, and current challenge as a single parent, their prospective future is an unwelcome one where chronic disadvantage, and the kind of emotional distress (likely to be a consequence of chronic parental absence) of which Mr DND’s mother spoke so compellingly, are readily foreseeable. Mr DND asserts a willingness and renewed determination to avoid such an outcome for his two children. It is a determination that the children’s best interests (particularly those of MAFD and RLD), and those of Mr DND’s mother and CP, deserve being put to the test, notwithstanding the significant risk of Mr DND re-offending, and the community expectation associated with his past offending. Given Mr DND’s long Australian residence, and especially the children’s best interests, the time has not yet come to call a halt to the uncertainty of the prospect of Mr DND’s rehabilitation in Australia.

22. The delegate’s reviewable decision of 17 May 2018 decision is set aside. In substitution for the 17 May 2018 decision, the 17 August 2017 decision to cancel the Special Category (Temporary) Class TY Subclass 444 (Special Category) visa is revoked.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

......................[sgd]..................................................

Associate

Dated: 9 August 2018

Date(s) of hearing:	31 July 2018 and 1 August 2018
Solicitors for the Applicant:	Samuta McComber Lawyers
Solicitors for the Respondent:	Australian Government Solicitor

Schedule – DND Criminal record summary

Reasons paragraph 5

Conviction

Age

Drugs

Dishonesty

Violence

Traffic

Conduct

Date

Offences

Penalty

Penalty (actual sentence)

Bond or Parole conditions

No

no of offences (cumulative)

Event

Court

Type

Custodial Period

Bond

Fine

(prior conv'tn)

(months)

Start

Non-Parole

End

(months)

$

Juvenile offences

1

15

1

1-Apr-11

Assault occasioning ABH in company of others

12

s33(1)(b) - supervision

2

15

1

1-Apr-11

Shoplifting value <=$2000

12

s33(1)(b) - supervision

3

15

2

1-Apr-11

Shoplifting value <=$2000

12

s33(1)(b) - supervision

4

15

2

6-Dec-11

Robbery in company

10

s33(1)(g);(1B) suspended / with cond

15

(1-Apr-11)

6-Dec-11

Assault occasioning ABH in company of others

18

s33(1)(e) - probation

15

(1-Apr-11)

6-Dec-11

Shoplifting value <=$2000

18

s33(1)(e) - probation

15

(1-Apr-11)

6-Dec-11

Shoplifting value <=$2000

18

s33(1)(e) - probation

5

16

1

28-Feb-12

Not pay train fare and hold valid ticket

200

6

16

2

28-Feb-12

Wilfully spit on train or public area

100

7

16

3

4-Dec-12

Enter land not presc premises w/o lawful excuse

200

8

17

4

9-Apr-13

Use offensive language on public passenger vehicle/train etc

s33(1)(a) - dismissed with caution

9

17

5

9-Apr-13

Travel or attempt to travel without valid ticket - minor

s33(1)(a) - dismissed with caution

10

17

6

30-Apr-13

Travel or attempt to travel without valid ticket - minor

50

(6-Dec-11)

12-Nov-13

Robbery in company

18

28-Oct-13

20-Dec-13

27-Apr-15

s 33(1)(g) - control order

11

16

3

13-Aug-12

12-Nov-13

Robbery armed with offensive weapon

18

28-Oct-13

20-Dec-13

27-Apr-15

s 33(1)(g) - control order

12	17	4	3-Dec-13	Common assault	75
13	17	7	29-Oct-13	10-Dec-13	Deposit litter not in receptacle provided	20
14	17	8	29-Oct-13	10-Dec-13	Smoke in or on public passenger vehicle, train, public area	20
15	17	9	29-Oct-13	10-Dec-13	Travel or attempt to travel without valid ticket - minor	20
Sub-totals	2	4	0	9
Juvenile offence total		15
Adult
1	19	1	25-Mar-14	27-Nov-15	Steal from the person	18	s9 : counselling, edcn & D&A rehab
2	19	1	25-Mar-14	27-Nov-15	Aggravated assault with intent to rob - (accessory after fact)	6	s9 : counselling, edcn & D&A rehab
On remand	27-Mar-14	08-Jul-14
3	18	2	30-Oct-14	Common assault	800
4	18	2	30-Oct-14	Shoplifting	200
5	19	3	15-Aug-14	6-May-15	Affray	18	500	s9 : counselling, edcn & D&A rehab
20	26-Jul-16	Affray - (called up from 6 May 2015 - sentence entirely backdated)		4	26-Mar-16	25-Jul-16	25-Jul-16	NOT ACTUALLY IMPRISONED
6	19	1	17-Dec-14	5-Feb-15	Behave in offensive manner in/near public place/school	660
7	19	2	17-Dec-14	5-Feb-15	Fail to comply with terms of notice erected by council	250
8	19	3	21-Dec-14	6-May-15	Larceny value <=$2000	18	500	s9 : counselling, edcn & D&A rehab
9	19	3	21-Dec-14	6-May-15	Enter inclosed land not presc premises w/o lawful excuse	200
27-Dec-14	Daughter "MAFD" born
10	19	1	15-Jul-15	3-Sep-15	Special category driver- special range pca (0.02 to 0.049) -1st off	450
11	19	2	15-Jul-15	3-Sep-15	Never licensed person drive vehicle on road - first offence	450
2-Oct-15	Daugher "MAFD" placed in care
12	19	4	25-Sep-15	15-Oct-15	Refuse/fail to comply with direction	100
On remand	16-Oct-15	15-Feb-16
13	20	4	15-Oct-15	26-Jul-16	Stalk/intimidate intend fear physical etc harm (personal)	10	16-Oct-15	15-Feb-16	25-Aug-17	ONLY HELD IN CUSTODY ON REMAND

14	20	5	24-Nov-16	Travel or attempt to travel without valid ticket - adult	50
15	20	1	24-Nov-16	Possess prohibited drug	250
On remand  /// balance of sentence	10-Jan-17	08-Apr-17
16	3	"Aug-16	16-Mar-17	Never licensed person - prior offence	1	9-Jan-17	8-Feb-17
17	4	"Aug-16	16-Mar-17	Mid range PCA (0.08 to 0.15) - second offence	1	9-Jan-17	8-Feb-17
18	5	31-Dec-16	16-Mar-17	Never licensed person - prior offence	9	9-Feb-17	8-Apr-17	8-Nov-17
19	6	31-Dec-16	16-Mar-17	Mid range PCA - (0.08 to 0.15) second offence	2	9-Feb-17	8-Apr-17
20	21	7	31-Dec-16	16-Mar-17	Driver not wear seatbelt poperly adjusted/fastened	s10a conviction - no other penalty
21	21	8	31-Dec-16	16-Mar-17	Fraudulently alter or use driver licence	s10a conviction - no other penalty
22	21	9	31-Dec-16	16-Mar-17	Class a m/v exceed speed > 10 km/h - lidar	s10a conviction - no other penalty
23	21	6	9-Jan-17	16-Mar-17	Assault officer in execution of duty x 2	18	s9 : counselling, edcn & D&A rehab
24	21	7	9-Jan-17	16-Mar-17	Resist officer in execution of duty	18	s9 : counselling, edcn & D&A rehab
Parole revoked	7-Jun-17
17-Jun-17	Son  "RLD" born
30	21	9	15-May-17	9-Aug-17	Dishonestly obtain property by deception x 6	12	16-May-17	15-Nov-17	15-May-18	(Order confirmed 12-Oct-17)
(16-Mar-17)	9-Aug-17	Assault officer in execution of duty x 2	16-May-17	15-Nov-17	15-May-18
(16-Mar-17)	9-Aug-17	Resist officer in execution of duty	16-May-17	15-Nov-17	15-May-18
Subtotal	1	9	7	9	5
Adult offences total		31
Sub-totals- all offences		1	11	11	9	14
Total	46
Note:-	s33(1)(b)	Children (Criminal Proceedings) Act 1987 (NSW) - an order requiring a good behaviour bond - for a maximum of two years
s33(1)(e)	Children (Criminal Proceedings) Act 1987 (NSW) - an order releasing a child on probation - for a maximum period of two years
s33(1)(g)	Children (Criminal Proceedings) Act 1987 (NSW) - an order committing a person to the ministerial care - for a maximum of two years
"(s 9)"	a good behaviour bond granted under s 9 of the (NSW) Crimes (Sentencing Procedure) Act (1999)
"(s 10)"	a matter where no conviction was recorded - s 10 (NSW) Crimes (Sentencing Procedure) Act (1999)
"(s 12)"	a suspended sentence granted under s 12 of the (NSW) Crimes (Sentencing Procedure) Act (1999)