Dore and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1750
•21 June 2022
Dore and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1750 (21 June 2022)
Division:GENERAL DIVISION
File Number: 2021/8552
Re:Gavin Dore
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:21 June 2022
Place:Brisbane
The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.
.......................[SGD]..........................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of a mandatory cancellation of a Class TY 444 Special (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – drug trafficking and other drug-related offences – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
Family Law Act 1975 (Cth)
CASES
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
SECONDARY MATERIALS
Ministerial Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Contents
Decision
Catchwords
Legislation
Cases
Secondary Materials
REASONS FOR DECISION
INTRODUCTION AND BACKGROUND
LEGISLATIVE FRAMEWORK
Does the Applicant pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
Primary Consideration 1 – Protection of the Australian Community
The nature and seriousness of the non-citizen’s conduct to date
The extent of the Applicant’s offending
Sentencing of the Applicant for the second phase of his offending
The Applicant’s personal history and circumstances contemporaneous with his offending, particularly its second phase
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct.
(i) Information and evidence on the risk of the Applicant reoffending
(ii) Evidence of rehabilitation achieved by the Applicant by the time of this decision………………………………………………………………………………………
(iii) Conclusions about risk
Conclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Alleged family violence incident – 20 October 2015
Alleged family violence incident – 28 February 2017
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct on 28 February 2017 constitute family violence?
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: the Best Interests of Minor Children in Australia
Identification of the relevant minor children
The parties’ respective contentions
The Applicant’s evidence-in-chief
The Applicant’s cross-examination
Application of factors in paragraph 8.3(4) of the Direction to Child A
Application of factors in paragraph 8.3(4) of the Direction to Stepchildren S and L
Findings about the relevant minor children
Conclusion: Primary Consideration 3
Primary Consideration 4: Expectations of the Australian Community
Conclusion: Primary Consideration 4
Other Considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of impediments if removed
Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature, and duration of “other ties” – length of residence
3. Strength, nature, and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community
Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
21 June 2022
INTRODUCTION AND BACKGROUND
1.Gavin Dore (“the Applicant”) is a 33-year-old male, born in New Zealand.[1] The Applicant first arrived in Australia on 1 June 1996. His time in Australia from 1 June 1996 to the date of his final departure – 13 July 2018 – is expressed thus in his Movement History:[2]
[1] Date of birth: 7 April 1989. See T1, T2, page 4.
[2] T1, T26, pages 132-133.
Arrival Departure Time in Australia 1 June 1996 15 June 1996 6 months 20 January 2008 2 February 2008 2 weeks 14 October 2011 17 October 2011 3 days 19 February 2012 11 August 2012 6 months 15 August 2012 24 December 2012 4 months 2 January 2013 6 July 2014 18 months 19 July 2014 24 December 2014 6 months 28 December 2014 13 July 2018 6 months Total time spent in Australia: 46 months, 2 weeks, 3 days
= approx. 4 years
2.The Applicant remains in New Zealand, having not returned to Australia since the date of his final departure on 13 July 2018. When the Applicant was last in Australia he held a Special Category (Temporary) (Class TY) (Subclass 444) visa (“the visa”).[3] It is this visa that the Applicant wants restored to him so that he can return to Australia for the principal purpose of spending time with his infant child who resides here with her mother.
3.On 18 May 2018, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and was serving a full-time custodial sentence.[4] On 21 May 2018, the Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation decision.[5] He then departed Australia on 13 July 2018.[6] On 22 October 2021, a delegate of the Respondent decided that the discretion subsisting in
s 501CA(4) of the Act to revoke the cancellation of the Applicant’s visa was not enlivened.[7]
[3] Ibid, page 132.
[4] Ibid, T28, pages 135-139.
[5] Ibid, T9, pages 45-55 (i.e., Personal Circumstances Form – without annexures).
[6] Ibid, T26, page 132.
[7] Ibid, T3, pages 11-27.
On 12 November 2021, the Applicant applied to this Tribunal for review of the abovementioned decision by the delegate refusing to revoke the original mandatory cancellation of his visa.[8] The usual 84 day expedited timeframe[9] applicable to these matters does not arise in the instant case because the Applicant is not in the migration zone by virtue of his final departure from Australia on 13 July 2018.[10]
[8] Ibid, T2, pages 3-8.
[9] See Migration Act 1958 (Cth), s 500(6L)(c).
[10] Ibid.
The hearing of this application proceeded before me on 14 and 15 March and 12 April 2022. The hearing received oral evidence from:
·the Applicant;
·Mr Michael Duncan (the Applicant’s father-in-law);
·Ms Glenda Wendelborn (who has known the Applicant for nearly three years having met him while working as a volunteer for a rehabilitative program then being undertaken by the Applicant. She is also the proprietor of the roofing company which now employs the Applicant as its Business Manager);
·Ms Emily Dore (the Applicant’s wife who has known him for about five years);
·Ms Juedie Nowell (a friend of the Applicant who has known the Applicant for over half his life);
·Ms Jo Robertson (the Applicant’s sister-in-law);
·Ms Ruby Duncan (the Applicant’s mother-in-law); and
·Pastor Wesley Lorentz (Lead Pastor, Gracegate Church, Auckland, New Zealand).
The hearing also received written evidence which was reduced to an agreed[11] Exhibit Register, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
[11] See generally, Transcript (15 March 2022), page 3, lines 15-47; page 4, lines 1-16.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[12]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[13]
[12] [2018] FCAFC 151.
[13] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, “substantial criminal record”. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…”
On 20 February 2018, at the Brisbane Supreme Court, the Applicant received custodial terms of imprisonment totalling three years and three months for offending primarily involving the possession of, and trafficking in, illicit drugs.[14] I will later deal with the nature and extent of the offending together with the modality of how the Applicant served his sentences. What matters for present purposes is whether or not the Applicant has received a singular term of imprisonment of twelve months or more, or in the alternative, whether he has received custodial terms, the cumulative total of which equate to or exceed twelve months. What does not matter for present purposes is the amount of time the Applicant has actually served.[15]
[14] T1, T4, page 29.
[15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, at pages 415-416.
There can be no issue with the finding that the Applicant fails the character test. The only live issue before the Tribunal is whether it should exercise its discretion pursuant to s 501CA(4) of the Act to revoke the abovementioned decision of the delegate (made on 22 October 2021) refusing to set aside the mandatory cancellation of the Applicant’s visa. It is common ground between the parties that the Applicant does not pass the character test.[16]
[16] A1, page 2, para [5(b)]; R1, page 5, para [18].
I am therefore satisfied (and I find) that the Applicant has a, “substantial criminal record” and, accordingly, he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[17] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[18]
[17] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[18] Direction No 90, para [6]. See also Direction No 90, para [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[19]
[19] Ibid, para [8].
The Other Considerations which, where relevant, I must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”.[20]
[20] Ibid, para [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)one or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. Whilst the Applicant does have a history of offending in Australia, it cannot be said to be insignificant, but neither is it singularly remarkable or extensive. We are talking about an offending history that, in sentencing terms, runs from 3 November 2016 to 26 February 2018 – a period of about sixteen months. It involves the commission of some fourteen offences that were dealt with across six separate sentencing episodes in various courts in South East Queensland.
The extent of the Applicant’s offending
As I understood it, the Applicant’s offending history has, for all intents and purposes, two phases. The first of those phases involved largely petulant and unremarkable offending that was exclusively punished by way of the imposition of fines. This first phase of the offending may be summarised thus:[21]
[21] See T1, T4, page 29.
Court Date Offence Sentence Richlands Magistrates Court
3/11/2016
Possession of dangerous drugs
No conviction recorded; fined $500
Richlands Magistrates Court
3/11/2016
Unlawful possession of controlled drug
No conviction recorded; fined $400
Redcliffe Magistrates Court
2/03/2017
Authority required to possess explosives
No conviction recorded; fined $600
Caloundra Magistrates Court
15/03/2017
Breach of bail condition
No conviction recorded; fined $150
Southport Magistrates Court
31/05/2017
Breach of bail condition
No conviction recorded; Recognisance entered into in the sum of $600 to be of good behaviour for 12 months
Southport Magistrates Court
07/02/2018
Failure to appear in accordance with undertaking
No conviction recorded; fined $150
The second phase of the Applicant’s offending involved the commission of significantly more serious unlawful conduct, almost exclusively in the realm of illicit drugs. This second phase of the offending can be summarised thus:[22]
[22] Ibid, pages 28-29.
Court Date Offence Sentence Brisbane Supreme Court
20/02/2018
Trafficking in dangerous drugs
Conviction recorded and sentenced to imprisonment for 3 years
Brisbane Supreme Court
20/02/2018
Possess dangerous drug specified in Schedule 1 or 2
Conviction recorded and sentenced to imprisonment for 3 months; both terms of imprisonment to be served concurrently with a parole release date fixed for 19/06/2018
Brisbane Supreme Court
20/02/2018
Possessing dangerous drugs (Schedule 1 drug, quantity of or exceeding Schedule 3 but less than Schedule 4)
On all charges, conviction recorded and not further punished; serious drug offence certificate in relation to trafficking in dangerous drugs
Brisbane Supreme Court
20/02/2018
Receiving or possessing property obtained from trafficking or supplying
As above
Brisbane Supreme Court
20/02/2018
Possessing anything for use in the commission of crime defined in Part 2
As above
Southport Magistrates Court
26/02/2018
Not being endorsed to possess restricted drug
On all charges Conviction recorded Not further punished
Southport Magistrates Court
26/02/2018
Authority required to possess explosives
As above
Sentencing of the Applicant for the second phase of his offending
The abovementioned second phase of the Applicant’s offending that came before the Brisbane Supreme Court on 20 February 2018 was reduced to a five-count indictment that appears in the material.[23] The five counts comprised:
[23] R2, R2, pages 60-66.
“THE QUEEN against GAVIN LOUIS DORE
Count 1 Trafficking in a dangerous drug
Count 2 Possessing a dangerous drug in excess of 2.0 grams
Count 3 Possessing a dangerous drug
Count 4 Possessing property obtained from trafficking
Count 5 Possessing a thing for use in connection with trafficking in a dangerous drug.”
28.The learned sentencing Judge was Her Honour Justice Mullins of the Supreme Court of Queensland. It is pertinent to quote important parts of Her Honour’s prescient and perspicacious sentencing remarks in an effort to provide context to the Applicant’s offending at the time it was dealt with by Her Honour. First, with reference to how the Applicant caused his charges to be dealt with by lawful authority, Her Honour noted the following:
“You have also pleaded guilty to other offences that were detected at the time the police executed a warrant at your residence on 13 June 2016. They are: possession of the dangerous drug methylamphetamine in excess of two grams; possessing dangerous drugs – and they are alprazolam, morphine, diazepam and tetrahydrocannabinol; possessing property obtained from trafficking, and possessing a thing for use in connection with the commission of a dangerous drug.”[24]
[24] T1, T7, page 35, lines 5-12.
29.Second, in terms of the Applicant’s antecedents and personal circumstances contextualising the offending, Her Honour said this in the sentencing remarks:
“When you were charged with these offences, you had no criminal history. It’s relevant, though, to the sentencing that you were not a youthful offender, someone aged 18 to 20 years. Instead, you were 27 years old. You had suffered a financial setback in an unfair dismissal from a job that you obviously enjoyed doing, and you had also suffered the breakdown in your relationship with your then partner. It seems that a boarder who was sharing your house used illicit substances, and you became involved in the drug culture. You would not be going to prison today, if you were being sentenced for possession of methylamphetamine for personal use.”[25]
[25] Ibid, lines 14-21.
30.Third, in terms of the extent of the commerciality underpinning the Applicant’s unlawful enterprise involving illicit drugs, Her Honour noted the following:
“But because of your financial circumstances, you obviously became tempted by making easy money from drugs and got involved in trafficking. The sophistication of the trafficking business is indicated by the uncontested fact that you had $59,000 outstanding from customers identified by name. You were cooperative with police and provided them with the means to access your iPhone, and there were 900 drug related messages over the period of four weeks. From that phone, there were only eight occasions detected on which drug supplies took place. But you were also found in possession of BlackBerry mobile phones that are the subject of count 5, which were encrypted mobile phones and to which the police could not obtain access, so that they were unable to be forensically analysed.
The prosecutor was very fair in acknowledging that you had a significant drug addiction at the time and conceding that not all the drugs that you were found with were intended for commercial consumption. The schedule of facts identifies the packaging of the drugs, and it is apparent that there were some large amounts of substance containing methylamphetamine, but then there were some clip-seal bags that had smaller amounts of methylamphetamine. The total pure amount of methylamphetamine that was located was 48.686 grams. You were found in possession of $2700 currency, and that’s the subject of count 4.”[26]
[26] Ibid, lines 23-41.
31.Fourth, in terms of formulating a sentence, Her Honour proceeded thus:
“But what I am going to do is take into account all the factors in your favour by structuring the sentence in the manner in which I indicated at the outset, or during the submissions.[27]
…
I have read all the references that have been provided in your support, and it is apparent that you were highly performing in the job before you were unfairly dismissed.[28]
…
As far as this sentencing is concerned, however, because of the steps that you have already taken towards your own rehabilitation, I consider that deterrence of others is the prime purpose of the sentencing, and that is why you are going to have to serve some period of custody, albeit short.[29]
…
In respect of count 1, you are sentenced to three years imprisonment. In respect of each of counts 2, 4 and 5, you are convicted, a conviction is recorded, and you are not further punished. In respect of count 3, you are sentenced to three months imprisonment. I take it that is an appropriate time for that.[30]
…
I order that the date that you be released on parole be fixed at 19 June 2018.”[31]The Applicant’s personal history and circumstances contemporaneous with his offending, particularly its second phase
[27] Ibid, page 36, lines 21-29
[28] Ibid, lines 25-27.
[29] Ibid, lines 38-41.
[30] Ibid, page 37, lines 10-14.
[31] Ibid, lines 18-19.
As will be noted from a review of the evidence in these Reasons, the Applicant can be fairly described as a determined and driven person who sets goals and does his level best to meet them. Stated broadly, his offending in Australia – particularly that involving illicit drugs – was the result of him taking extraordinary, and ultimately unlawful, measures to deal with a severe interruption to his capacity to meet those goals through lawful means.
The Applicant is from a stable family of five. His parents have been married for 38 years and he is the youngest of three children born to those parents. Born and raised in New Zealand, his parents did not necessarily provide him with an affluent upbringing, but the domestic circumstances in which he was raised was both stable and loving.
He completed his primary schooling in New Zealand and secured a place at a private school institution for his secondary school education. He was a high academic achiever involved in both the academic and sporting side of his school. Consistent with my impression of the Applicant as a driven person, the clinical psychologist who provided both written and oral evidence for this hearing[32] noted that: “Mr Dore said that he was always a child and teenager that was ‘on the go’. He said that he could never sit still and he always had multiple thoughts running through his mind.”[33]
[32] Dr Jacqui Yoxall.
[33] A2, page GD14.
Soon after moving to and settling in Australia in February 2012, the Applicant found employment with a motorcycle retail sales business in Brisbane called “Motorcycle Holdings”. His proactivity and diligence saw him quickly progress through the company’s ranks as a result of the long hours he worked. He was well remunerated for the work he did.
In April 2013, the Applicant commenced a personal relationship with Ms Jessica Allwright. She had two children from a previous relationship and the Applicant largely took on fatherly parental responsibilities for those two children (then aged four and three years, respectively). The Applicant’s material success in his work led him and Ms Allwright to purchase a residential dwelling together in late 2013.
It is apparent from both the Applicant’s oral evidence and in the life story he described to Dr Yoxall that his motivation and ambition did, to some extent, disorientate his moral compass such that he developed an unhealthy predilection for material success and financial advancement. He openly told the hearing that he incorrectly prioritised his level of income and career progression as the primary means of assessing his value as a person.
As recorded by Dr Yoxall, little more than three years after commencing employment at Motorcycle Holdings, he was deriving an income of something in the order of $AUD 200,000 per annum. Ms Allwright was also well-remunerated for her work and, as a household, he and she jointly derived an income in excess of $AUD 300,000 per annum and could comfortably meet their home mortgage payments, the cost of private school education for their children, together with other tangible material benefits and advantages.
This halcyon life began to unravel for the Applicant in or about August 2015. First, there was a serious challenge to the stability of his domestic relationship with Ms Allwright who was unfaithful to him as a result of an attraction she had developed to one of his friends. Second, there soon followed (in October 2015) another very serious challenge, this time to the security of his employment when Motorcycle Holdings took a decision to dismiss the Applicant from his position. This dismissal resulted in the Applicant instituting proceedings for the wrongful termination of his employment.
This dual challenge needs to be quantified. Not only did the Applicant lose his access to circa $AUD 200,000 of annual income through the loss of his employment, he also effectively lost access to $AUD 100,000, representing Ms Allwright’s income, which she no longer shared with him because their domestic relationship was at an end. The combined effect of dealing with this financial shock, together with the emotional difficulty of losing his relationship with Ms Allwright, led the Applicant to a psychological malaise resulting in a diagnosis of depression made by his local medical officer. The Applicant reported that this condition instilled feelings of helplessness, hopelessness, and a feeling of low self-worth in him.
As is often the case in the event of financial shock – be it in the form of an external event (loss of employment) or a more internal event (divorce/separation) – the Applicant became desperate to retain the abovementioned residential dwelling he and Ms Allwright had purchased jointly in December 2013. Due to the end of their domestic relationship, Ms Allwright had vacated the property and, in an effort to retain it, the Applicant took in paying boarders to meet the mortgage commitment.
The idea of bringing in boarders may have assisted the Applicant to meet financial commitments, but it effectively derailed whatever hold he had on his capacity to lead a substance-free and lawful lifestyle. The Applicant described in his evidence how the boarders exposed him to negative social influences involving substance abuse, most notably, alcohol and methylamphetamine. Recourse to abusing these substances helped the Applicant moderate and control his feelings of disillusion, disorganisation, distress, and an inability to cope with the financial and personal difficulties confronting him.
He quickly became a daily user of methylamphetamine. In turn, he developed difficulties sleeping and eventually found he could only go to sleep after consuming benzodiazepines, opioids, and other sleep aids. As noted by Dr Yoxall, “All these substances were used as a form of self-medication and helped him to immediately, but temporarily, disconnect from his concerns.”[34]
[34] Ibid, page GD17.
His daily methylamphetamine dependence, together with ongoing financial pressures, led the Applicant to a reality that his lifestyle had become unaffordable. This, in turn, led to him selling illicit substances to other users. Those unlawful activities eventually came to the attention of the police who, on 13 June 2016, executed a search warrant at his home. Information gleaned by the search warrant led police to charge him with trafficking in dangerous drugs (together with the additional four counts described in the abovementioned five-count indictment).
In summary, the Applicant was charged with unlawfully trafficking in dangerous drugs for an approximate period of four weeks between May and June 2016. As he was rightly entitled to do, the Applicant sought and obtained legal advice and remained on bail for the period June 2016 until February 2018. This then, is the context in which the Applicant committed the second and more serious phase of offending in Australia.
Having regard to the above-described (1) offending history of the Applicant and (2) the context in which the Applicant was led to commit his offending, especially its second phase, I will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of his unlawful conduct.
Paragraph 8.1.1(1)(a)(i)
The Applicant’s criminal history does not contain any conviction for the commission of violent and/or sexual crimes. It is therefore not relevant to the present application.
Paragraph 8.1.1(1)(a)(ii)
The Applicant’s criminal history does not contain any conviction for the commission of crimes of violence against women or children. It is therefore not relevant to the present application.
Paragraph 8.1.1(1)(a)(iii)
I approach, with much caution, the question of whether the Applicant has committed acts of family violence against Ms Allwright (or anyone else) regardless of whether there is a conviction for an offence or sentence imposed. The Respondent has summonsed certain documents from the Queensland Police Service. That material contains reference to two instances of conduct referable to domestic violence on the part of the Applicant.
First, the material contains reference to an application by Ms Allwright in, or about October 2015 for a domestic violence order alleging the Applicant:
“…has displayed a willingness to control many aspects of my life despite residing is [sic] separate addresses. This behaviour involves; regularly attended the [sic] my home at all times of the night to speak with me. Hacking my mobile phone to enable location services, he always wanted to know where I was, he also conducted data recovery of my mobile phone to update himself of my movements, he hacked my Facebook account and changed my passwords so the I could not have contact with others, He regularly called unknown phone numbers on my mobile phone to establish who I had been telephoning.”[35]
[Errors in original]
[35] R2, R1, page 52.
Consequent to this application, Ms Allwright obtained a temporary protection order, issued by the Pine Rivers Magistrate Court on 4 November 2015.[36] The Applicant sought and obtained legal advice resulting in (1) no final or other domestic violence or protection order being made against him and (2) the original application being withdrawn.
[36] Ibid, pages 48-49.
Second, there is a police record in the material relating to an incident that occurred on 28 February 2017 between the Applicant and his then domestic partner.[37] In this document the police record the following:
“…The respondent has threatend [sic] the Agg by saying to her that he would dob her in as a drug user so she would have the baby taken off her when it's born. The Respondent then kicked a box over spilling books he had packed onto the floor. It was at this time the Agg called Police. Police spoke to the Respondent and he stated that they had been having verbal argument about infidelity, she then asked for some space for the night which he has then left and returned next day to get his belongings. He stated he thought she would be dropping kids off at school and he could come and go without any arguments but she was home. They started to argue again at which time he admitted to kicking the box over, he stated he made no threats to her and there was no arguments whatsover [sic] about her supposedly being 6 weeks pregnant and custody issues. The Agg and Resp could not confirm with Police via doctors reports if in fact she was pregnant. A referral was offered to both parties but they refused.”[38]
[37] Ibid, pages 58-59.
[38] Ibid, page 59.
I approach the application of this sub-paragraph 8.1.1(1)(a)(iii) with caution and I do so for two reasons. First, it can be definitively stated that the Applicant has no convictions for conduct arising from, or referable to family violence. Second, I am not comfortable with an automatic recourse to applying this sub-paragraph against him via use of the phrase, “regardless of whether there is a conviction for an offence or a sentence imposed”.
The reason for my discomfort in so doing is that I am not of the view that the phrase, “regardless of whether there is a conviction for an offence or a sentence imposed” somehow facilitates an automatic finding that this sub-paragraph must be applied against an Applicant. This is especially so in the circumstances of the first-described incident involving Ms Allwright in October/November 2015. There, she made an initial application and, while a temporary order was made, it was, some six weeks later, withdrawn and otherwise discontinued against the Applicant. Therefore, I have reservations about applying the auspices of this sub-paragraph 8.1.1(1)(a)(iii) to the circumstances of the first incident.
The phrase, “regardless of whether there is a conviction for an offence or a sentence imposed”, in the Tribunal’s view, is surely intended to apply in circumstances akin to an aggrieved spouse calling the police to the domestic residence. Upon arrival, the police find obvious physical damage to the home and, in more dire cases, actual physical harm sustained by the aggrieved spouse. Yet for some reason, the aggrieved spouse does not proceed with a temporary protection order, or the attending police do not see fit to do so. This example is more akin to the second above-described incident. The police did attend and did create a record of what they were told and what they observed.
Therefore, regardless of whether a charge (or charges) emanated from that conduct (i.e., from the second incident in February 2017) it can be found that there is information from an independent and authoritative source such as to activate the provisions of this sub-paragraph 8.1.1(1)(a)(iii) against the Applicant. Speaking plainly, if the first incident (from October 2015) was all that was before the Tribunal, I would not apply this particular sub-paragraph against the Applicant.
I am therefore of the view that the second above-described incident does activate the provisions of this sub-paragraph such that the Applicant’s conduct in February 2017 can now be viewed as being, “very serious”.
Paragraph 8.1.1(1)(b)(i)
There is no evidence that this Applicant has committed any offences involving him causing a person to enter into or being a party to a forced marriage. This particular sub-paragraph is therefore not relevant.
Paragraph 8.1.1(1)(b)(ii)
The Applicant has not committed crimes against vulnerable members of the community such as the elderly or the disabled, or government representatives, or officials due to the position they hold, or in the performance of their duties. This sub-paragraph is therefore not relevant.
Paragraph 8.1.1(1)(b)(iii)
Neither party has propounded the application of this sub-paragraph. It is therefore not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
To the best of my understanding of the material, the Applicant has spent either no time or only minimal time in immigration detention. His fixed parole date was 19 June 2018.[39] His final departure from Australia occurred on 13 July 2018,[40] less than a month after his parole release date. There is nothing in the material indicating any conduct by this Applicant in immigration detention (assuming he was ever so detained) and accordingly, this sub-paragraph is not relevant.
[39] T1, T7, page 37, lines 18-19.
[40] Ibid, T26, page 132.
Paragraph 8.1.1(1)(c)
In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[41] (2) acts of family violence;[42] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[43] The Applicant does not have any convictions and resulting sentences for any offending in the abovementioned three realms.
[41] Direction No 90, para [8.1.1(1)(a)(ii)].
[42] Ibid, para [8.1.1(1)(a)(iii)].
[43] Ibid, para [8.1.1(1)(b)(i)].
That said, the Applicant has been sentenced for other offending that is not excluded by this sub-paragraph. He has, on six occasions, been punished by way of fines for offending involving breaches of bail conditions (x4), unlawful possession of a controlled drug (x1), possession of dangerous drugs (x1) and a failure to hold the necessary authority required to possess explosives. The remainder of his sentences have involved the imposition of custodial time that he has served consequent upon his commission of the more serious second phase of his offences, as particularised in the abovementioned five-count indictment.
The imposition of a custodial term upon an offender is seen as the last resort in the sentencing hierarchy. It logically follows that the imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[44] It is therefore safe to find that the sentences imposed by the courts for the non-excluded crimes of this Applicant, with particular reference to the second phase of his offending, does militate in favour of a finding that his unlawful conduct in Australia has been of a serious nature.
[44] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at para [20].
Paragraph 8.1.1(1)(d)
This sub-paragraph addresses two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. While the Applicant’s offending history is not a long one, running as it does, for barely sixteen months, it nevertheless involves the commission of some fourteen offences. It is therefore safe to find that across the duration of his criminal history, convictions for some fourteen offences must surely render the Applicant’s offending as frequent. A similar finding can be made if one applies the number of the offences against the totality of the time the Applicant spent in Australia, which spanned from 2012-2018.
I am also of the view that there is a trend of increasing seriousness in the Applicant’s offending. The abovementioned first phase of his offending involved the commission of moderately serious offending in the realm of illicit drugs and failures to meet the requirements of bail conditions. There is also a single conviction for not holding the necessary authority in relation to explosive material. The trend of increasing seriousness in the offending can be gleaned from the nature of his convictions in the second phase of his unlawful conduct.
The Applicant’s second offending phase saw him effectively commercialise his involvement with illicit drugs by having a list of regular customers, handling not-insignificant amounts of money arising from that activity, together with possessing paraphernalia derived from his commercial involvement in the possession and trafficking of unlawful drugs. I am satisfied that the nature of the offences committed, and sentences imposed between the first and second phases of his offending, most certainly demonstrate a trend of increasing seriousness.
Paragraph 8.1.1(1)(e)
This sub-paragraph compels an enquiry into the cumulative effect of the Applicant’s repeated offending. I am able to glean three demonstrable cumulative effects from this Applicant’s repeated offending. First, during the first phase of his offending, he failed to experience any deterrent effect from the non-custodial sentencing regime that was progressively imposed on him. Instead, he proceeded to commit the significantly more serious tranche of offences that constitute his offending’s second phase.
Second, and perhaps more significantly, the Applicant’s involvement in the more commercially derived activity of trafficking in dangerous drugs can be safely found to have had a deleterious and adverse impact on the community. As observed by Deputy President Kendall (previously of this Tribunal): “…Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime”.[45]
[45] Lau and Minister for Immigration and Border Protection (Migration) [2017] AATA 138 at para [46]; Deputy President Kendall was appointed to the Federal Circuit and Family Court of Australia on 29 January 2018.
Third, his repeated breaches of bail conditions during the period of March 2017 to February 2018 can be said to demonstrate a failure to respect the lawful authority governing the Australian community back into which the Applicant now seeks re-admission. There are four breaches of bail inside the period of one year. As against that, it might be said that the Applicant has developed a respect for lawful authority because, as best I understood the material, he has resided in New Zealand since mid-2018 and has not since re-offended.
The above-described cumulative effects of the Applicant’s repeated offending in this country must, to an extent, militate in favour of a finding that his offending has been of a serious nature.
Paragraph 8.1.1(1)(f)
Excluding the Applicant’s initial arrival in Australia on 1 June 1996, he has re-entered Australia on some six separate occasions after spending time abroad. The most recent of those arrivals from abroad was on 28 December 2014. He was convicted for the first of his offences on 3 November 2016. Therefore, the Applicant cannot be found to have falsely or misleadingly completed an incoming passenger card because all of his arrivals in Australia pre-date his offending that is recorded in his criminal history.
I am not aware of any other reference in the material demonstrating the Applicant has provided false or misleading information to either the Respondent’s Department or any other entity. This sub-paragraph is not relevant.
The Tribunal notes that in the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) there is a reference to an apparent failure by the Applicant to disclose a “criminal conviction” on an incoming passenger card, when he arrived in Australia on 28 December 2014.[46] I am of the view this reference / contention is incorrect. As I have outlined in the immediately preceding paragraph, the Applicant’s criminal history in Australia commences in November 2016, which is two years after his last arrival here in December 2014. A traffic infringement for speeding[47] does not constitute, “a prior criminal conviction” as required by this sub-paragraph 8.1.1(1)(f).
[46] A1, page 6, para [31].
[47] See generally R2, pages 66-70.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. As mentioned, the period of the Applicant’s offending (in terms of sentencing episodes) only runs for about sixteen months. It is safe to find that, in all probability, his offending was not of sufficient duration to (1) come to the notice of the Respondent’s Department such that (2) a warning could be issued to the Applicant that further offending would imperil his visa status to remain here.
This sub-paragraph is therefore not relevant to determination of this application.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant and applicable sub-paragraphs, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as, “serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
I have earlier referred to the two broad phases of the Applicant’s offending. As previously mentioned, much of the Applicant’s earlier or first-phase offending was unremarkable, as demonstrated by the non-custodial terms imposed for those specific six offences (dealt with at five sentencing episodes, from 3 November 2016 through to 7 February 2018). Indeed, all these offences were dealt with by way of a, “no conviction recorded” notation on the Applicant’s criminal record, with the imposition of fines for five of those offences and a good behaviour recognisance for the sixth offence.
Were the Applicant to re-commit any of these offences it can be fairly argued that the only harm he would cause would be to himself. Granted, in that first-phase matrix of six offences, there are two breaches of bail and one failure to appear in accordance with an undertaking. I accept that if the Applicant were to re-commit such offences, he would impose an obligation on law enforcement authority to go through the administrative process of tracking him down and otherwise bringing him before the court to be appropriately dealt with. But that would be the entirety of the, “nature of the harm” that the Applicant would cause the Australian community were he to re-commit such offences.
The situation is, of course, different with regard to the Applicant’s tranche of offences comprising the second phase of his offending. Most, but not all, of those offences in that second phase are more serious than those in the first. These offences represent the peak of the Applicant’s involvement in the illicit drug trade. “Trade” is the operative word here. The Applicant experienced multiple financial shocks and consequently, extreme financial pressure as a result of the loss of his remunerative employment and the loss of his partner’s income after she commenced a relationship with someone else.
Nothing adverse to the Applicant can be said about his intention to (1) purchase a residential property; (2) send his children to private schools and (3) to otherwise derive the benefits of the not-inconsiderable combined income that he and his then-partner generated. He had every right to fulfill whatever materialistic ambitions he harboured at that time. This is because he is, and remains, a diligent and conscientious worker who applies the material benefits from his remunerative efforts to achieving the best possible lifestyle he can.
That said, the offence of “trafficking in dangerous drugs”, together with the other drug-based offences in the orbit of that primary offence, must be found to be serious by their nature. The seriousness of offending in the realm of “trafficking in dangerous drugs” is to be found in the commerciality inherent in such activity. We are not talking about a single drug user indulging in his/her unfortunate habit. Nor are we talking about a single drug user pooling his/her resources with fellow drug users simply for the purpose of satiating their craving for those drugs.
The Applicant’s serious illicit drug activity in the realm of “trafficking” is significant because it drew others into its orbit. Indeed, it intentionally did so because the essential indicia of “trafficking in dangerous drugs” is to move or caused to be moved illicit and dangerous drugs through the community for the specific purpose of realising profit. It is also serious offending because the perpetrator of the “trafficking” activity is fully aware that what they are doing is causing or propagating other peoples’ addiction to such substances for a specific profit-derived business purpose. In essence, the Applicant conducted a drug business with multiple customers in circumstances where he either knew, or ought reasonably to have known, that he was causing others to become addicted or become more seriously addicted to those illicit substances.
Were he to again commit “trafficking” type offences upon a return to the community, there can be little the Applicant can say to cavil with a finding that his offending would again give rise to the misery of illicit drug addiction, both for the addicts/users and for those people who are drawn into the orbit of each addict’s/user’s physical, psychological and other difficulties (such as loss of employment) that arise from such an addiction. The exponential nature of such harm must also be understood. There is evidence in the material that the Applicant ran a “customer list” of something like 45 customers to whom he supplied illicit drugs. There is realisable potential for every single one of those approximately 45 customers to draw one or more people into the orbit of their own addiction and consequential difficulties arising therefrom.
In its SFIC, the Respondent has relevantly quoted the findings of a ‘Final Report of the National Ice Taskforce, 2015’ which pertinently tells us about the adverse impact of illicit drug use, not just on users, but on the community more broadly:
‘Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs’.[48]
[48] R1, page 8, para [31].
I am therefore satisfied (and I find) that were this Applicant to again commit commercially-oriented drug offences in the realm of “trafficking” in dangerous drugs, the nature of the harm to individuals or the Australian community would be serious and would involve physical, psychological, and material harm to both individual victims, plus those who are caught in the ambit of a given victim’s difficulties, plus the community at large. Such harm could, quite conceivably, extend to harm at a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
(i) Information and evidence on the risk of the Applicant reoffending
To my mind, this Applicant’s recidivist risk can be best understood by a discussion of two elements which were borne out in the evidence. First, I will refer to information and evidence that speaks to the Applicant’s recidivist risk, having particular regard to the life he has established and conducted for himself in New Zealand since leaving Australia on 13 July 2018. Second, and as part of my discussion around the evidence of the Applicant’s rehabilitation he has received contemporaneous with this decision, I will refer to the written and oral evidence of the forensic psychologist, Dr Jacqui Yoxall.
Turning firstly to the nature of the evidence around how the Applicant has re-established himself in New Zealand, it is necessary to understand the dire factual milieu confronting him in Australia that, in turn, spawned his offending here, particularly his abovementioned second-phase offending. After settling here in 2012, the Applicant obviously and impressively established himself in his chosen line of work. His rapid rise within the motorcycle retail business that employed him is self-evident. He predicated the financial risk he was prepared to carry on the basis that his and his partner’s income from their respective jobs would more than adequately meet the requirements of their lifestyle and overall financial commitments.
As we know, this halcyon arrangement was severely impacted by the loss of his employment (and income), the loss of his former partner (and her income) and a consequential, “scrambling” by the Applicant to make financial ends meet and to otherwise pay his way and meet his obligations. The first question to answer is whether the Applicant had taken any kind of rehabilitative steps in Australia contemporaneous with or prior to his appearance before Mullins J for sentencing on 20 February 2018. It is clear that he had, with Mullins J stating the following in her sentencing remarks:
“…You obviously came to your senses in early 2017 about having to do something with your life, and you have taken advantage of the assistance provided by the Salvation Army, and it is to your credit that you have participated in an in-house rehabilitation program since early April 2017. There have been restrictions on your liberty as a result of participating in that program. And after asking you questions about it, I consider that I can give you full credit for the time that you have participated in that program and will reduce both the head sentence and the time that you are required to spend in actual custody.
…
I was referred to Court of Appeal authorities by the prosecutor, and I consider that, consistent with those authorities but for your in-house rehabilitation program, I would have been bound to give you a head sentence of four years imprisonment, with the usual suspension or parole eligibility after one-third.
…
Other people have got to know that if they get involved in a relatively successful trafficking business making money to substitute for their lost income and to assist in buying their own drugs, they will have to serve some time in prison. But your rehabilitation is also important to the community, and I consider that that will be served by structuring the sentence so that you are released after four months.
…”[49]
[My emphasis]
[49] T1, T7, page 36, lines 1-10; lines 14-17; and lines 41-46.
There is little to cavil with the proposition and finding that the Applicant will be able to obtain treatment for any of his now-claimed physical and psychological conditions in New Zealand to the same (or very nearly the same) level of standard of treatment and care that would otherwise be available to him in Australia. He is a citizen of New Zealand and as such, he has the same access to treatments for those conditions as would be available to other citizens of that country.
Sub-paragraph 9.2(1)(b): I am hard-pressed to identify any substantial language or cultural barriers now militating as impediments to the Applicant’s resettlement in New Zealand. On the contrary, he has found an established reliable remunerative employment; he has met a partner whom he has recently married and with whom he has recently had a child (Child I). As has been found by this Tribunal (differently constituted) in a previous case: “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…]”.[142] I am therefore not of the view that the Applicant will face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand.
[142] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), para [101].
Sub-paragraph 9.2(1)(c): As I have mentioned, the Applicant’s age and state of health do not present any impediment(s) to his re-settlement in New Zealand. They have certainly not done so for the almost four years that he has been there. To whatever extent he may require social and/or economic support in New Zealand, he will have available to him the same level of governmental support – in terms of publicly available healthcare and social security payments – as is available to other citizens of that country. It cannot be denied that, broadly speaking, New Zealand has similar systems and institutions of social welfare and other support to those available in Australia. Once again, the authority of Tera Euna and Minister for Immigration and Border Protection[143] becomes relevant:
“New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”[144]
[143] Ibid.
[144] Ibid, para [101].
Having regard to my findings referable to each of the three sub-paragraph components of this Other Consideration (b), I am of the view that it – put at its highest – confers only a moderate amount of weight in favour of revocation of the delegate’s decision under review.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal about any impact the Applicant’s return to, and continued presence in, Australia would have on any of the victims of his offending. In the absence of such evidence, it would not be safe to speculate about the extent of any impact this Applicant’s offending has had, or would have, on any of his victims if he were to return here.
That said, I must have regard to the authority of PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“PGDX”).[145] I am mindful of the comments of Kerr J in that decision to this effect:
“[57] I am satisfied that nothing in CGX20 as has settled the construction to be given to cl 14.4 [the precursor to paragraph 9.3(1) of Direction 90] requires, contrary to that guidance, a victim to be heard only as to such impacts as weigh in favour of the cancellation of a visa. I reject that DKN20 requires it.
[58] It can be accepted that usually such impacts will weigh in favour of the cancellation of an offender’s visa.
[59] Usually, but not always.”[146]
[My insertion]
[145] [2021] FCA 1235.
[146] Ibid, paras [57]-[59].
To my mind, PDGX does not have application to the instant facts because there is no evidence from any witness before the Tribunal speaking positively about restoration of the Applicant’s visa status to return here. I agree with the respective contentions of the parties: this Other Consideration (c) is not relevant and no weight is allocable.[147]
[147] See A1, page 13, para [65]; see also R1, page 14, para [55].
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
This first exercise requires identification of the Applicant’s immediate family in Australia. Of course, he has his biological daughter, Child A, who resides here but her interests are assessed and taken into account as part of the consideration for Primary Consideration 3. In his PCF, the Applicant provided a list of immediate family members who comprised his father, his mother and his two sisters. According to the PCF, all of them have New Zealand nationality and all of them reside in that country. I am therefore hard-pressed to identify any immediate family members for the purposes of assessing allocable weight to this paragraph 9.4 of the Direction. It is therefore unsafe to utilise this component of paragraph 9.4 as a basis of allocating any discernible weight to the Applicant for this Other Consideration (d).
2. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant settled in Australia on a final basis in 2012. I have earlier detailed his movements in and out of Australia for the period spanning June 1996 to July 2018. I have found that he has spent something like 20% of his life in this country. It therefore cannot be found that the Applicant has spent the majority of his life in Australia, or that he came here as a young child.
I will now make reference to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia on a final basis in 2012. His first conviction in an Australian court occurred on 3 November 2016, over four years after he settled here. A period of over four years post-settlement in Australia should not be construed as being, “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. I have already found the Applicant has a very solid history of employment in Australia. He will have paid a not inconsiderable amount of taxation on the income he derived and would thus have made a contribution to the financial sustenance of the Australian community. In his PCF, there is reference to the following community contributions he has made to the Australian community: “While I was involved with the Salvation Army, before I placed myself in to rehabilitation at Transformations I helped at several feed the homeless nights in the Sunshine Coast with Jessica [Allwright], who now works for them.”[148]
[148] T1, T10, page 74.
Given the Applicant’s employment history in Australia and his voluntary contributions to the Australian community, I am satisfied that this second tempering sub-element can be applied in his favour. While the first tempering sub-element is neutral, the second one can be safely applied in the Applicant’s favour to attract weight to this Other Consideration (d) for the purposes of revoking the decision to mandatorily cancel his visa.
3. Strength, nature, and duration of “other ties” – family and other social links
In his PCF, the Applicant had prepared a list of, “…close family members including cousins, grandparents, uncles/aunts.”[149] The list of such family members in the PCF is very extensive. We are talking about some 25 people comprising:
·five uncles;
·three aunties;
·a grandfather and grandmother;
·the aforementioned fourteen cousins; and
·one niece.
[149] Ibid, page 72.
Thirteen of the people listed have Australian nationality whilst the remaining twelve are New Zealand nationals. Significantly, all 25 people reside in Australia. In his statutory declaration, the Applicant says: “I see my current appeal [that is, this application] as an avenue to allow me to have the ability to return to Australia to...spend quality time with Child A and my other family members.”[150] [My emphasis and insertion].
[150] A2, GD3, para [23].
While none of these people in the abovementioned extensive list were called to give evidence at the hearing before me, it can be safely found that the Applicant does have, “family and social links” with them. This third component of Other Consideration (d) facilitates the allocation of weight in the Applicant’s favour towards the revocation of this decision to mandatorily cancel his visa. I make these findings pursuant to this third component of paragraph 9.4 of the Direction on the basis that the people in the extensive list are either Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain here.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant, and no weight is allocable.
Weight allocable to Other Consideration (d): links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a moderate level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: is of moderate weight in favour of revocation;
(c)impact on victims: not relevant; and
(d)links to the Australian community: is of moderate level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a certain, but not determinative, level of weight against revocation;
·Primary Consideration 2: weighs moderately, but not on its own, determinatively, against revocation;
·Primary Consideration 3: weighs heavily in favour of revocation;
·Primary Consideration 4: carries a certain, but not determinative weight, against revocation;
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Consideration 3 and Other Considerations (b) and (d), respectively, are sufficient to outweigh the combined weight I have allocated to Primary Considerations 1, 2 and 4, respectively;
·A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours revocation of the Respondent’s decision, made on 22 October 2021, such that the Applicant’s visa status to remain in Australia should be restored to him.
Consequently, I find there to be “another reason” as to why the cancellation decision of 22 October 2021 should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act.
DECISION
The decision under review is set aside and a decision in substitution is made revoking the original visa cancellation decision.
I certify that the preceding 227 (two-hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...............[SGD]..................
Associate
Dated: 21 June 2022
Date of hearing: 14, 15 March and 12 April 2022
Solicitor for the Applicant:
Solicitor for the Respondent:
Ms Jennifer Samuta (Principal)
Samuta McComber LawyersMr Jake Kyranis (Senior Associate)
Spark Helmore LawyersAnnexure A – Exhibit Register
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
T1
Section 37 T-documents (T1 – T29, paged 1 – 165)
R
-
10 Dec 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (14 pages)
A
14 Jan 2022
14 Jan 2022
A2
Applicant’s Further Evidence Bundle (paged GD1 – GD76, enclosing five short videos)
A
-
10 Mar 2022
A3
Letter of support of Ms Ruby Duncan
A
-
11 Mar 2022
A4
Letter of support of Eru and Nannette Herperi
A
5 Mar 2022
14 Mar 2022
A5
Evidence of Applicant’s Financial Contributions consisting of:
- Child support; and
- Miscellaneous bank transfers
A
-
15 Mar 2022
R1
Respondent’s Statement of Facts, Issues and Contentions (15 pages)
R
10 Feb 2022
10 Feb 2022
R2
Respondent’s Tender Bundle (R1 – R5, paged 1 – 378)
R
-
10 Feb 2022
13
10
2