DQDW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

DQDW and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3657 (15 September 2022)
Division:GENERAL DIVISION
File Number: 2022/5392
DQDWRe:
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member Rebecca Bellamy
Date:15 September 2022
Date of Written Reasons: 2 November 2022
Place:Brisbane

The decision under review is affirmed.
............................[SGD]............................................

Senior Member R Bellamy
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Absorbed Person 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 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4362
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011).
Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 270
XYTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4823
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION
Senior Member R Bellamy
2 November 2022

The Applicant is a 47-year-old citizen of New Zealand who came to Australia in October 1974 when he was a month old. The most recent visa held by him was an Absorbed Person visa (“visa”) which he was taken to have been granted on 1 September 1994 by operation of law.[1] His visa was recently cancelled due to his criminal offending, and he has asked the Tribunal to revoke that cancellation.
[1] Migration Act 1958 (Cth) s 34; Exhibit G12 page 55.
The Applicant has a devoted family network who all appear to regard him in a positive and sympathetic way. In particular, he has a minor daughter with whom he has recently established a relationship and who has benefited from that. She is a vulnerable child. In discharging my function, I am required to make some objective assessments, and some of my assessments concerning the Applicant are not positive. I hope and trust that the contents of these reasons will be communicated to the Applicant’s minor daughter to the extent that, and in the manner that, her guardians consider appropriate.
Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. On 20 January 2015 the Applicant was sentenced by the Brisbane Supreme Court to eight years imprisonment with a parole eligibility date of 1 May 2022.
On 23 June 2020 while the Applicant was serving that sentence, a delegate of the Minister (“the Respondent”) mandatorily cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence.[2]
[2] Exhibit G1, G12 pages 55 to 61.
On 6 July 2020 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:
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.
[3]     Exhibit G1, G14 pages 70 to 98.
On 23 June 2022 the Respondent decided not to revoke the cancellation.[4] On 30 June 2022 the Applicant lodged an application in this Tribunal for review of that decision.[5] The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
[4] Exhibit G1, G3, page 19.
[5] Exhibit G1. G2 pages 3 to 8.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should revoke the original decision.[6]
[6] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
The hearing of this application took place on 29 and 30 August 2022 and 2 and 6 September 2022. The Applicant and a number of his family members gave evidence in person. The carer of the Applicant’s minor daughter gave evidence by telephone. The Tribunal heard evidence from Professor James Freeman, forensic psychologist, by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In applying 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 (“the Direction”) applies.[7]
[7] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must guide a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(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.
Paragraph 6 of the Direction provides 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.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They 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; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I may also take into account, and allocate weight on the basis of, other matters if that is appropriate having regard to the scope and purpose of the legislative scheme regarding visa cancellation on character grounds which includes the Direction.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND and offending
The Applicant has committed some very serious offences that have resulted in his spending a total of around 17 years in gaol. He is a repeat offender not only in the sense that he has committed some 23 offences over the years but also because he has repeatedly committed the same kind of serious offence, being trafficking in illicit drugs. It was contended on the Applicant’s behalf that his offending is substantially attributable to sexual abuse in his childhood, and that now the risk of re-offending is significantly reduced since he has been receptive to counselling in relation to the abuse and because of some other factors including family relationships. As such I have given detailed consideration to those matters.
The Applicant was born in New Zealand in December 1974. His Australian mother had fallen pregnant while travelling there. When he was four weeks old, his mother returned with him to Australia. He has lived in Australia ever since, never having left, even for a holiday.
Despite the Applicant’s father moving to Australia at around the same time he did, he had almost no contact with him after the age of six months. His mother re-partnered and had two more sons with that partner (“Mr F”) and then a daughter with a subsequent partner.[8] The Applicant regarded Mr F as a father figure.[9]
[8] Exhibit R2, page 383 to 384.
[9] Exhibit A2, page 38.
In around 1983, when the Applicant was eight years old, his 17 month old sister died from falling off a veranda. He was sent to live with his father for a period. His mother’s relationship with Mr F broke down and the family moved around a lot after that, with the Applicant frequently changing schools and the family sometimes living in women’s shelters.
Also in around 1983, when the Applicant was in third grade at a Catholic Primary School, he became the victim of regular sexual abuse by a teacher, and later also a priest, for several months. He left that school, but later, in around 1984/1985, when he was attending a different Catholic Primary School, he was sexually abused again for several months. The abuse was often perpetrated under the guise of punishment during detention for real or fabricated transgressions.
The Applicant recently took legal action in relation to the sexual abuse and a settlement was reached. The Respondent did not dispute that the abuse occurred. The Applicant gave reasonably detailed written evidence about the abuse, and I commend both legal representatives for not requiring him to delve too much into it when he gave oral evidence. Suffice to say that for the periods that it lasted it was regular, physically painful, psychologically and emotionally distressing and it involved coercion and manipulation. It caused some immediate psychological harm. The Applicant partly blamed himself for the abuse and at one stage blamed his mother because he did not have a father as he believed this left him vulnerable in some way.[10] He developed an aversion to people in positions of authority over him. He started misbehaving and picking on other children, and the abuse became so normalised to him that when he transferred to a school in Queensland, he was somewhat surprised that he was not sexually abused when he was punished for misbehaving.[11] The Applicant did not initially disclose the abuse to anyone. He says it impacted his approach to intimate relationships, and I can readily accept that.
[10]    Exhibit A2, page 41 and 43.
[11]    Exhibit A2, page 41.
The Applicant started drinking alcohol at the age of eleven, and he engaged in problematic drinking in his teens until 2002. He used marijuana from the age of fourteen.[12] He used amphetamines from around the age of 17 to 27.[13]
[12] Exhibit A2, page 45.
[13] Transcript, page 64, lines 14 to 46.
In 1989, the Applicant commenced a relationship with “Ms P”, with whom he would go on to have three children.
In 1990, at the age of 15, the Applicant committed an assault occasioning actual bodily harm. He was fined in the Children’s Court for that. Two years later he was caught in possession of dangerous drugs, and in 1993 he incurred a debt by false pretences when he sold his friend’s video recorder to pay a debt.[14] He was also found in possession of a pipe (for smoking cannabis).
[14] Exhibit A4, page 3.
In 1994 the Applicant spent three days of a month long sentence in prison for breaching his bail.[15] That year his first child, “Son 1”, was born. Over the next eight years the Applicant and Ms P had “Son 2” and “Daughter 1”. According to Ms P, during that period the Applicant spent long periods away from his family.
[15] He appealed the sentence and was released early as the learned Judge thought he had served enough time.
In 1996, the Applicant drove under the influence of alcohol.[16] On another occasion he was found with a pipe and cannabis. That year he was put on Disability Support Pension (“DSP”) because of a back injury he had sustained as a teenager, and he remained on that for around six years.[17]
[16] Exhibit R2, page 29.
[17] Exhibit A4, page 6.
In March 1997, a month after Son 2 was born, the Applicant again drove under the influence of alcohol.[18] Later in 1997 he was also found in possession of a pipe for smoking cannabis, and he refused to give his particulars to the police. In January 1998, he committed “assaults occasioning bodily harm”. In December 1999, he was caught with cannabis on two occasions. In January 2000, he again drove under the influence of alcohol, behaved in a disorderly manner and he was found in possession of cannabis.
[18] Exhibit R2, page 29.
In early 2000, the Applicant told his mother about the sexual abuse.[19]
[19] Exhibit G1, G17 pages 126 to 127.
During 2000, Ms P threatened to end the relationship on many occasions because of the Applicant’s cannabis use but she stayed for the children. In December that year, Daughter 1 was born. Ms P’s parents built a house for Ms P, the Applicant and their children to live in.[20]
[20] Exhibit R4, page 22.
In November 2001 the Applicant lodged an application for Australian citizenship. He left blank the part of the form asking what his current country of citizenship was, but he indicated that he was born in New Zealand. The application form asked if he had ever been convicted of, or found guilty of, any offences including traffic offences that went to court. He ticked “yes”. The form asked for details of “ALL occurrences”. He wrote “Drink-Driving Cairns courthouse”.[21] In early 2002, the Department wrote to the Applicant about his application, raising the fact that a person matching his details has been convicted or found guilty of offences in Queensland separate to the drink-driving offence.[22] The Applicant did not pursue the application.
[21] Exhibit R3, page 88.
[22] Exhibit R3, pages 108 to 109.
In the hearing, the Applicant claimed that when he told his mother he had applied for citizenship, she told him he already was an Australian citizen, so he “disregarded the whole thing”.[23] He said he had no idea why he did not correctly disclose his criminal history. When he was asked if he was hoping the Department would not find out and that might make it easier for him to get citizenship he said “Maybe, yes”. He also suggested he did not know the dates of the other offences and it was “just all too much and overwhelming”.[24] However, he did not write the date of the drink driving offence that he did disclose, and the form did not specifically ask for dates. I am satisfied that the Applicant deliberately concealed the vast majority of his criminal history in his citizenship application hoping that would improve his prospects.
[23]    Transcript, page 16, lines 5 to 20.
[24]    Transcript, page 132, lines 35 to 40.
In addition, during this period, the Applicant was involved in growing and supplying marijuana, which he had been doing for some time. He would spend several months living at a property away from his home where there was a marijuana crop. He and three other people would take turns being there, looking after the crop.
In the hearing, the Applicant admitted that his involvement in the producing and dealing in cannabis was not specifically to pay for his use of that drug. Rather, he found it more convenient than having a normal job. He enjoyed being in the outdoors and being on his own.[25]
[25] Transcript, page 74, line 7 to page 75, line 35; page 140, lines 39 to 46.
In 2002, the Applicant used cocaine for six months,[26] and ran up a $60,000 drug debt. He was also using ecstasy (MDMA) and selling it to support his use. Ms P was trying to persuade the Applicant to get help to cease his drug use. The Applicant did not think about the consequences of running up a drug debt despite the fact that he and Ms P had a mortgage to pay off on the house her parents had provided for them.[27]
[26] Exhibit A1, and Exhibit A2, page 45.
[27] Transcript, page 79, lines 16 to 35.
In March 2002, the Applicant commenced a probation order for possessing dangerous drugs. In July 2002 he started a substance abuse program. In September 2002, Ms P had finally had enough and ended the relationship.[28] The children were aged eight, six and two at that time. Through all of these events, the Applicant continued to traffick cannabis, and later ecstasy. He told Professor Freeman:
“I was growing pot, me and the missus had split up, I got on the cocaine and MDMA and was partying very hard. I was selling pot to pay for my habit [cannabis].”[29]
[28] Exhibit R4, page 22
[29] Exhibit A4, page 4.

I note than the last sentence is inconsistent with what he told the Tribunal, and the entire passage either relates to a period after September 2002 or the cocaine and MDMA use was not all attributable to his relationship breakdown.
In December 2002, the Applicant was charged and remanded in custody.[30] At that time, Ms P had not heard from him in three months. She found out he had been arrested and that he was living with another woman.[31]
[30] Exhibit R2, page 36.
[31] According to a letter Ms P wrote to the sentencing court in support of the Applicant – see Exhibit R4, page 22.
On 1 July 2004, the Applicant was convicted of trafficking in cannabis between 18 June 2001 and 31 December 2002 and in ecstasy from 28 November 2002 to 22 December 2002. During a period when he had been under surveillance, he had sold something in the order of $15,000 worth of ecstasy tablets and $5,000 worth of cannabis sativa.[32] The growing operation had 2064 marijuana plants.[33] He was sentenced to six years imprisonment. In a letter that Ms P wrote to the court in support of the Applicant she said he had promised her that he would not repeat his involvement with drugs once out of prison.[34]
[32]    Exhibit R2, page 35.
[33]    Transcript, page 139, lines 45 to 48.
[34]    Exhibit R4, page 22.
In an interview with Queensland Corrective Services (“QCS”) on 3 November 2005, the Applicant appears to have recognised the impact his offending had on Ms P and his children, saying he was:
“sorry for the kids and [name blanked] it was the worst three years of her life and I put her through it. She still gets emotional on the phone and the effects of what I did have devastated her”.[35]
[Redaction in original]
[35] Exhibit R2, page 563
He added that he never wanted to lose his family again and he believed one impact was a diagnosis of depression of his middle child (Son 2) who was seven years old. He said Son 2 had demonstrated suicidal tendencies in that he would climb and threaten to jump, and that this was attributed to the loss of the Applicant and “the surrounding circumstances”. He said as a result, Ms P had moved the family to the Sunshine Coast to access family support as the visits to the prison were thought to be having a negative effect on Son 2. The children and Ms P were having counselling.[36] The family had been living in Cairns and the Applicant was incarcerated at Woodford Correctional Centre (between Brisbane and the Sunshine Coast). The Applicant’s other son, Son 1, recalled the family having moved from Cairns to the Sunshine Coast to be closer to the Applicant and to visit him.[37]
[36] Exhibit R2, page 559.
[37] Exhibit A4, page 54 to 54.
In September 2005, the Applicant wrote a letter in support of an application for parole in which he said:[38]
“I’ve been incarcerated since December 2002 and in that time I have learned the importance of life and what life really means to me. I have taken many steps to change my ways and thoughts of thinking. It is only now that I realise what damage I have done to myself, my three children, my de facto and everyone who are close to me. All because of my impulsive thinking and distorted decisions that I made in the past, since I have been incarcerated I have learned many lessons. For example, my way of thinking, the feelings and effects it has on other (sic) like my children and family. Especially I have learnt self-control and why I took the path that got me in here in the first place. I have also completed and passed several rehabilitation course’s which were relapse prevention and substance abuse, cognitive skills and transitions. I personally found them quite invaluable towards my positive future. Since my incarceration that has not been a day where I have not thought about my wrongful doings and the suffering endured by my children and family. They become innocent victims resulting from my wrongdoings and paying for my inconsiderate actions.”
(Errors in original)
[38] Exhibit R2, page 571.
The Applicant said he planned to live with a friend at Yorkey’s Knob (near Cairns) until Ms P and the children could move back to Cairns. His stated release plans included “Work hard and excel to my full ability”, “Utilise my valuable support network of family and friends” and “Never relapse into my old habits in the past”.[39] In the hearing the Applicant said that he did not have the initiative to go through with those release plans: he knew what he had to do but not how to do it.
[39] Exhibit R2, pages 572 to 574.
Three months later, in December 2005, the Applicant was released on parole. By that time he had separated from Ms P.[40] He met Ms J though casual employment and he commenced a relationship with her. He later told Professor Freeman he started using methamphetamine in 2005, which must have been shortly after his release on parole.[41]
[40] Exhibit R2, page 67.
[41] Exhibit A4, page 4.
Ms J fell pregnant around the beginning of 2006. According to the Applicant, in May 2006, two drug dealers, “Mr T” and Mr V”, demanded that the Applicant pay the drug debt he had accumulated in 2002. They claimed he owed $60,000. They came to the home he shared with Ms J, said he had four weeks to pay and made threats in relation to him, Ms J and his mother. They said if he went to the police Ms J would end up with a bullet. According to the Applicant, he did not touch drugs after that happened.
Ms J moved to the Gold Coast and the Applicant changed his accommodation, while staying in the local area, in an effort to elude Mr T and Mr V and give himself more time to raise the money he needed. He contacted his step-father and was told that his mother had “around $29,000” that she could give him. Mr T and Mr V confronted the Applicant at his new residence on 15 July 2006. He told them he could give them $29,000 and asked if he could pay the balance by instalments but they refused this offer. They required him to pay that money and collect something for them from Sydney to pay the debt. They told him not to contact the police or he would “pay for it as well as [Ms J] and my mother.”[42]
[42] [Citation Redacted] at [16].
As the Applicant did not have a driver's licence, he arranged for a friend, “Mr R” to drive his vehicle on the pretext of a road trip. He also invited his female flatmate to come along for the ride. Neither knew the real purpose of the trip. The Applicant was alone when he collected the package and on the return trip, he collected his mother’s money from her garage.
Meanwhile, Ms J had anonymously informed the police of the Applicant’s plan in the hope that they would catch Mr T and Mr V. They intercepted the Applicant and arrested him. His parole was suspended and he was returned to custody. There is no information before me about what, if anything, happened with respect to Mr T and Mr V. The Applicant claims he never heard from them again.
Ms J gave birth to “Daughter 2” in January 2007. The Applicant was aware of this and of the child’s name. He claims that he suspected she was his biological child but that Ms J had denied it and “just disappeared”. When probed about that, he said she had left in 2006 at the same time he moved. This refers to her fleeing after the threats from Mr T and Mr V. I do not accept that Ms J “disappeared”: the Applicant knew she went to the Gold Coast and he must have been in touch with her for her to know about his plan – made several weeks later - to collect something for Mr T and Mr V. Not only that, Ms J gave evidence at the Applicant’s trial in October 2007. The Applicant claimed that was the last he saw of her. He did not try to contact her afterwards about Daughter 2. He said he did not know how.[43]
[43] Transcript, page 153, lines 5 to 15.
In October 2007, the Applicant was found guilty of trafficking in dangerous drugs (methylamphetamine) and possession of dangerous drugs (methylamphetamine). He pleaded not guilty, claiming the defence of duress on the basis that Mr T and Mr V had forced him to transport the drugs. To explain why he did not seek help from the police, he said he did not think he had enough information about Mr T and Mr V to identify them to the police, and that he did not believe that going to the police was “100 per cent safe”. I note here that the Applicant was well aware of the ability of the police to detect and identify persons suspected of criminal activity as they had detected his involvement in cannabis trafficking after having him under surveillance.
The learned Judge asked the Applicant:
“But you understand that the police – it’s their job to investigate criminal behaviour and bring people who have committed it before the Court and have them dealt with?”
The Applicant replied, “There’s no guarantee if I was to put in - be put in police protection, that I’d still be safe.” In addition to the Judge asking the Applicant questions on this topic, the Crown cross examined him about his claim of duress.[44]
[44] [Citation Redacted] at [13].
The learned trial Judge did not allow the defence of duress, the Applicant maintained his not-guilty plea, and the jury convicted him. The quantity of methamphetamine was 364 grams (pure weight) which the Judge described as very substantial. Had the drugs been sold in ounce lots the value would have been $459,000, and in gram lots the value would have been $1.15 million.[45]
[45] [Citation Redacted] at [7].
In passing sentence, the Judge said:
“You gave evidence of having been threatened by two persons who dealt in drugs and from whom you purchased drugs over a substantial period and to whom you owed money. Whatever reservations I might have had about the account you gave, there was some evidence supporting it from your former partner and to some degree from your mother. That evidence, particularly that of your former partner, is, I think, sufficiently persuasive to require the court to sentence you upon the basis that you were acting under the threats which you claim, something which, in the results I ruled did not amount to a defence in law.
You did not cooperate with the police in any way and you have not exhibited any remorse. I take into account what your counsel has said about how the way in which you have pleaded not guilty might be viewed in this case. He has said that he advised you that you had a defence based upon duress and you may have proceeded on that basis. You persisted, however, with the plea of not guilty after the adverse ruling on that issue, although, of course, it is accepted this came late in the trial.
You had many opportunities to approach the law enforcement agencies about the threats that were made to you and of course you travelled from Cairns to Sydney and were in the process of returning with this very large quantity of methamphetamine when you were intercepted. You had ample opportunity to do something about the matter during that time. So whilst it is a significant factor in determining the criminality of your conduct for the purposes of sentence, there must also be borne in mind that you had ample opportunity to escape from those threats and did not at any time attempt to avail yourself of it. One can understand perhaps somebody with your history having some reluctance to approach the police but in our community they are the persons with the powers to enforce the law.
Also, it is, I think, not irrelevant that it must have been apparent to you in your dealings with those who deal in drugs, as you are running up debts with them, that there was a risk that some harm would come to you if you did not pay for those drugs ought to have been apparent.”[46]
[46] Exhibit G1, G9, pages 44 to 48.
Mr R had been tried with the Applicant and he was acquitted of both charges.[47] It is not apparent what happened to the female passenger.
[47] [Citation Redacted] at [1].
After the verdict, when the Applicant commenced serving his sentence, he told QCS that he believed the debt to Mr T and Mr V remained outstanding.[48] That was noted in an Offender Risk Needs Inventory. It was noted in that document that the Applicant did not express any remorse for putting Mr R and his flatmate in danger or in a position where they were accomplices in the offending.[49] In the hearing the Applicant said he considered the debt was repaid by the fact that he got caught and “did the time”.[50]
[48]    Exhibit R3, page 70.
[49]    Exhibit R3, page 72.
[50]    Transcript, page 122, lines 40 to 41.
The Applicant appealed against his conviction on the basis that the defence of duress should have been put to the jury. In disallowing the appeal, the Justice of Appeal who gave the leading judgement pointed out that the Applicant had ample opportunity to alert the police to his predicament, and he called no evidence which might have established a reasonable belief on his part that he could not have alerted the police or that police assistance would not have been forthcoming and efficacious. He gave no evidence at all which might allow the jury to conclude that his professed lack of faith in the ability of the police to defeat the threat was reasonable. His Honour observed that it was not necessary for the Applicant to identify Mr T and Mr V to the police. His Honour made the point that the Applicant chose to cooperate with criminals rather than the police. The Applicant unsuccessfully appealed to the High Court on the same issue.[51] (The citations of the Court decisions have been redacted in the published version of these reasons as they contain the Applicant’s name).
[51] [Citation Redacted].
In the hearing the Applicant was asked why he involved Mr R and his flatmate. He rather unconvincingly said he did not think he was involving them. He was asked why he did not tell the police that Mr R had no knowledge and no intentional involvement. He said he was told by his lawyer not to say anything. I find that to be a rather weak excuse given he did say something to the police – he told them the money in the vehicle belonged to his mother. He claimed he would not do what he did to Mr R now, that he has matured a lot and he tries to “think a bit more before I go on to doing stupid things”. I do not accept that involving Mr R was stupid. On the contrary, it was strategic, as the Applicant needed a person with a license to drive the car. When asked if what he did was stupid or intentionally bad, the Applicant said it was a bit of both.[52]
[52] Transcript, page 84, line 35 to page 85, line 18.
There are some things to note about all of this. First, in an application for parole in 2011 the Applicant said Mr T and Mr V had told him they knew corrupt police.[53] However, he did not give evidence to that effect in his trial despite extensive questioning. His excuse for committing the offence rather than going to the police has therefore changed over time. Second, he told QCS the debt was still outstanding at a time when that could have seemed credible, but many years later after no contact from Mr T or Mr V he told the Tribunal that he believed the debt had been wiped on account of him having been caught and having to serve time. This is another fluctuation in his account. In the documentary evidence, and in the Applicant’s oral evidence, he displayed a tendency to say what he thinks will be effective at a given point in time.
[53] Exhibit R2, page 389.
I respectfully accept the conclusions reached by the trial Judge and the Court of Appeal that the Applicant was not forced to the commit the offence, and in particular that he chose to co-operate with criminals rather than the police. According to the Applicant, he had not used drugs or alcohol since late May 2006. That means, he was not making decisions under the influence of mind altering substances.
During 2008 and 2009 the Applicant completed drug rehabilitation courses in prison.
In October 2010, the Department of Immigration and Citizenship (as it was then known) notified the Applicant that his visa could be cancelled on character grounds.[54] I do not have a copy of that letter before me.
[54] Exhibit G1, G21.
In June 2011, the Department wrote to the Applicant again, referring to the October 2010 letter about “the Visa which authorises your continued stay in Australia”. The letter went on to say:
“After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your Visa on character grounds on this occasion. Your Absorbed Person visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.”[55]
[55] Ibid.
The Applicant signed the formal warning which said:
“I, [his name], acknowledge that I have received the Notice of Decision not to cancel a visa under subsection 501 (2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.”[56]
[56] Ibid.
The Applicant now claims to have believed that he was an Australian citizen because his mother had always told him he was. His evidence on this topic was not consistent and clear. He referred to having believed he was a “citizen by absorption”. He said he thought he got the term “absorbed citizen” from a notification about cancellation of a visa in 2011. He said he gathered “they’d let me stay and made me a citizen by absorption”.[57] He later claimed he did not read the letter, and in relation to the warning he signed he said he rarely reads things he signs.[58] Despite that evidence, I am satisfied that the Applicant read the second letter and that he knew it concerned possible visa cancellation due to criminal offending.
[57]    Transcript, page 17, lines 13 to 25.
[58]    Transcript, pages 56 and 57.
The Applicant’s brother gave evidence that their mother believed the Applicant was an Australian citizen, and I accept that she did. However, the Applicant never voted in an election in Australia, and he thought he needed to apply for citizenship in 2001. This is not consistent with a belief that he was a citizen. The contents of the two letters from a Australian Government department with “Immigration and Citizenship” in its name - obviously a credible source - contradicted what his mother told him. It is implausible that he took the second letter to mean he had been made an Australian citizen. His evidence that he believed himself to be an Australian citizen is not plausible and I reject it.
In May 2011 an agent prepared a parole application[59] for the Applicant. According to the Applicant he provided the information to the agent and the agent “typed it all out”.[60]
[59] Exhibit R2, pages 376 to 457.
[60] Transcript page 144 lines 6 to 9.
In that application the Applicant described the death of his sister as having had a huge impact on him and that he had never really recovered from his grief.
In response to the question “What impact do you think your offending has had on the victim/s of your offending?” The Applicant’s response included:
“The people that these drugs would have been sold to had they reached the streets inevitably would have become addicts themselves so the miseries transferred to them and their families as well. More people suffer property offences at that persons (sic) hands and then the whole cycle starts all over again… I hate what drug addiction has done to my life and my family around me and it now shames me to realise that I could have been responsible for inflicting that misery on other families… Enlightenment has come through a combination of maturity and reflection on my life thus far but overwhelmingly by the fear that my children will follow the same path that I have. I have also considered with remorse, the high likelihood that my drug dealing could have resulted in someone else’s teenage child becoming addicted. The simple answer to this is if there is no drug dealers and traffickers then there is no addicts and therefore no victims. A simple answer in principle but much more difficult in practice. Having said that, if my resolve is strong, at least there will be one less user and dealer contributing to this community problem.”

The Applicant stated that he had four children, and:
“I take my responsibilities as a parent very seriously and I am ashamed that my behaviour has caused distress to my children. Upon my release to the community my children will be returning to my care.”
He confirmed in the hearing that the fourth child he referred to was Daughter 2. The statement in the application is dishonest. He was no longer in a relationship with Ms P and there is no evidence of any realistic prospect that his children would go from her care to his if he got parole. Further, they could not return to his care as they had not been in his care before that prison sentence. Daughter 2 had never been in the Applicant’s care and he was not even in contact with her or Ms J.
In another part of the application, the Applicant said, “I have four children, all of whom rely on me for their emotional and financial support”, which was also dishonest. The Applicant did not provide any kind of support to Daughter 2. Nor is there any evidence that he provided financial support to any of his three known children. Further, they had other sources of emotional support including Ms P (this is detailed under Other Consideration (d)).
The Applicant was questioned about his inclusion of a fourth child in the application. He said there was “always still that hunch that that child still could have been mine”. The following exchange then took place:
MR McLAREN: You would have – if that’s right, wouldn’t you have been saying that predominantly? You’ve had no contact with [Daughter 2] at that point, is my understanding?
APPLICANT: Yes, or the mother. No, that’s right. They just disappeared.
TRIBUNAL: But where you’ve said, “I take my responsibilities as a parent very seriously”, which suggests that you are a parent - you are in a position to parent all four? What - to parent all four of them. Like if you didn’t know where she was, how is she relevant to this application and to your statement that you take “My responsibilities as a parent very seriously”?
APPLICANT: Yes. No, I can’t explain that. Yes, I can’t explain what – I couldn’t explain that.
MR McLAREN: It really boils down, doesn’t it, [Applicant], to: you wouldn’t mention [Daughter 2] unless you think it’s relevant, right?
APPLICANT: I was just uncertain at the time.
MR McLAREN: [Applicant] there is a bit of a theme in these parole documents of saying what it is that you think is going to be what you want (indistinct). And I say that without criticism. It’s understandable, of course, if you’re going to get parole, you want to put your best foot forward and say, these are the reasons I think it’s appropriate?
APPLICANT: Yes, I – like I said, what I’ve put in there, I know that – they’re all the things I have to do. There’s a difference between having it and actually like taking the initiative to do it. That’s what I had troubles with, clearly.
MR McLAREN: Yes. I just wondered why, then, if you’ve listed [Daughter 2] there, surely the reason you’ve said that – that this is a child and I take my responsibilities very seriously – is because you’re trying to impress upon this person who’s making the decision, or the Board that’s making a decision, that this is something that should happen because it’s going to benefit me to say look, I’ve got this much younger child that needs money. Surely that’s something that, broadly speaking, is going to tug at heartstrings and be compelling?
APPLICANT: I don’t even know if I’ve said something about that - about [Daughter 2].
MR McLAREN: Well, you have?
APPLICANT: Have I?
MR McLAREN: You’ve said there, “I take my responsibilities as a parent very seriously”?
APPLICANT: I mean talking about [Daughter 2] individually.
MR McLAREN: “On my release to the community, my children will be returning to my care”. And that’s – that’s just untrue, isn’t it?
APPLICANT: Yes, well the intention was there. That’s what I wanted. That’s what I wanted, yes.
MR McLAREN: Well what did you ever do in the six months after you were out (indistinct words) after release, to have anything to do with [Daughter 2]?
APPLICANT: Nothing. Because I officially hadn’t – officially hadn’t known that she was my daughter. I always had that feeling that she might have been. I suppose I was hoping she was going to be. And I was a bit lost on that part of things.[61]
[61] Transcript, page 134, line 36 to page 135, line 38.
The parole application was quite extensive, and the Applicant put forward several other factors that he said would help him to stay away from drugs and crime. He said the respect of all of his family was critically important to him and he would never let them down again. He described his sister and brothers as crucial members of his support network. He said his mother was extremely disappointed in his offending behaviour but he described her as rigidly behind him in his efforts to rehabilitate and an important part of his support network. He described his partner of 12 months (whom he met several years before) as a very positive influence on him. He claimed to have always been able to form and maintain quality, pro-social friendships, and to have cut all ties with his former friends and associates who were detrimental to his progress. He claimed that he had deliberately not encouraged any close friendships within the inmate population because he did not intend to have any involvement with the criminal element upon his release. He observed that involvement with former inmates was a contributing factor in people that he had seen return to prison after relapsing and reoffending.
In a response to questions about coping strategies, the Applicant said, “seek help through counsellors” and he listed “Salvo’s (sic), Lifeline, Drug Arm” as supports. The application concluded with:
“During my imprisonment I have had much time to reflect on my life thus far and I am not proud of what I have seen. I can see that the remainder of my life could slip away wastefully and I am determined not to let that happen. I would ask the Board to accept the genuineness of my thoughts and intentions in this application.”
The Applicant completed a “Transitions” program in June 2011, ahead of his release to the community from gaol.[62]
[62] Exhibit R2, page 57.
In November 2011, the Applicant was released on parole.[63] His parole conditions required him to live with his mother (on the Sunshine Coast). His sister, who was around 16 years old at the time, also lived there. Ms P and the Applicant’s three children with her lived nearby and he spent time with them. They were aged 16, 14 and 10 at the time. He started a lawnmowing business.[64] He did not contact any of the support groups he listed in his parole application. When asked why in the hearing, he said he was too scared to talk about certain things and did not know how to “take that step”.
[63]    Exhibit G1, G8 page 41.
[64]    Exhibit A4, page 3.
The Applicant initially had fortnightly meetings with his parole officer. Those became monthly because as far as QCS knew he was abiding by his parole conditions. Throughout the period he was on parole he denied associating with anyone from prison. Indeed, a file note from 24 November 2011 records the Applicant claiming that he did not have much time for 90% of the Woodford (prison) population due to them being “junkies” and therefore he would not have time for them on the outside. He further claimed that he has not had urges to use drugs in years and he was “way over it”. He reported that he was in a relationship with a female in Morayfield who he met when he was not in prison.[65]
[65] Exhibit R2, pages 121 to 122.
The Applicant did not always stay at his approved address, and in the hearing, his sister recalled that he stayed with his girlfriend “on and off” and eventually moved into a unit.[66] As early as 13 January 2012, the Applicant’s sister, when answering a call from QCS, said he was not home, and she did not see much of him anymore.[67]
[66] Transcript page 171 lines 19 to 20.
[67] Exhibit R2, page 112.
Between December 2011 and April 2012, the Applicant underwent three drug tests and all were negative. An earlier test in December 2011 was positive for amphetamines and methamphetamines at less than the legal cut-off levels. The Applicant claimed the results were due to a health supplement he was taking.[68]
[68] Exhibit R2, page 106.
On 7 June 2012 and 5 July 2012, the Applicant was still reporting that he was still living with his mother and sister. He said he remained abstinent from drugs and alcohol and that he deliberately avoided coming into contact with previous associates.[69]
[69] Exhibit R2, pages 104 to 105.
In fact, the Applicant had run into old associates and people he knew from prison,[70] resumed using methamphetamine, and had been trafficking it since mid-January 2012. He continued to do that until he was arrested and returned to custody in July 2012.
[70] Transcript, page 86, lines 25 to 28.
The Applicant claims he offended to support his drug dependency. His family did not know he was using drugs. When his mother asked him if he was using drugs he denied it.[71]
[71] Transcript, page 34, line 44 to page 35, line 5.
The Applicant was caught after a lengthy joint investigation involving the Queensland Police and Australian Federal Police. He had a network of buyers and suppliers located throughout Queensland, and he supplied large quantities to his partner in Cairns to supply to his own network of buyers. He and this partner regularly discussed quality, pricing, debts, profits, production, sourcing and supply. On one occasion the Applicant said he had just watched a mate “do it all” and that he believed the next lot would be a lot stronger and that if they could find someone to “convert it into lumpy” it would “kill the market”.[72]
[72] Exhibit R2, page 9.
When the Applicant was ultimately convicted in 2015 of carrying on a business of trafficking in methylamphetamine the learned sentencing Judge found that there was a considerable cash flow associated with the trafficking, that the sales were mainly at wholesale level but also at retail level, and that the Applicant continued to carry on the business (mostly selling at retail level) after mid-June 2012 when the partnership ceased. When the Applicant was arrested, the methamphetamine found in his possession was of such a high purity that it indicated he was close to the source. His Honour accepted that the Applicant used methamphetamine and that there were no signs of opulent living. He described the operation as a very substantial methylamphetamine trafficking business.
The Judge made a “serious violent offence” declaration, meaning the Applicant would have to serve 80% of the sentence before he could apply for parole. He did that to avoid an inappropriately lenient sentence, taking into account the Applicant’s extensive criminal history for relevant drug offences, that the offending occurred whilst on parole, and that the scale of the trafficking meant that it was a serious example of such an offence.[73] The Applicant was sentenced to eight years imprisonment on top of the unserved part of his previous sentence.
[73] Exhibit G1, G8 page 42.
In the hearing the Applicant was vague about what “do it all”, “lumpy” and “kill the market” meant, although the impression that evidence gives is that the Applicant was involved in production and he was seeking to increase his market share. In the hearing, he denied that he was close to the source and only admitted to having seen “a little bit get made”. Despite the Applicant’s efforts to give the impression that he was less involved and less senior in the operation than the court found him to be, I accept the court’s assessment.
The Applicant appealed against the severity of his sentence. After he lost the appeal, a newspaper reported that he had used people he had previously met in gaol to distribute the drugs.[74] The Applicant did not dispute that.[75] He agreed that he was pretty sure his parole conditions did not allow him to associate with such people and that they were all breaching their parole conditions by associating with him.[76]
[74]    Exhibit G1, G10, page 49.
[75]    Transcript, page 138, lines 24 to 25.
[76]    Transcript, page 139, lines 1 and 2.
The explanation the Applicant gave the Tribunal for relapsing was that although he was trying to do the right thing - he had short term, medium term and long term goals, he was achieving some of those and working on others - at a certain point it became too much and he threw the towel in.[77] He said he got in contact with old associates “through phone numbers or something” and his partner in the drug operation was under surveillance. He said “a couple of them people were old associates that I didn’t disconnect from. I tried to and then obviously didn’t”.[78]
[77] Transcript page 86 lines 37 to 42.
[78] Transcript page 88 lines35 to 36.
Meanwhile, Daughter 2 was suffering severe neglect and trauma in Ms J’s care. Toward the end of 2015, she was removed by the Department of Children, Youth Justice and Multicultural Affairs (Queensland) and placed with her maternal grandparents in New South Wales. This was not a good arrangement for her and in July 2016 she was placed with a second cousin on Ms J’s side, “Mr M” and his wife “Mrs M” by the Department of Communities and Justice (New South Wales). In September 2018, due to the efforts of Mr and Mrs M, it was established by a DNA test that the Applicant was Daughter 2’s biological father.[79] The Applicant had always had regular communication with his other three children, and some visits, and he commenced having regular communication and visits with Daughter 2.
[79] Exhibit G1, G15, page 161.
While in gaol, the Applicant returned positive urine tests for Suboxone - an opiate type medication that requires a prescription – in 2015, 2016, 2017, 2018 (x3), 2019 and December 2020.[80] He did not have a prescription for it. He explained that he used it because he was very depressed in gaol and he could not get the help he needed. He stopped because “I was getting closer to parole and it was – I had all that court proceedings under way with certain stuff”. He now takes Prozac and Melatonin which are helping.[81]
[80] Exhibit R2, pages 142 to 143.
[81] Transcript, pages 35 to 38.
In August 2017, the Applicant kicked his cell door and verbally abused guards, including telling them to “F-ck off” and calling them “Dog C-nts”.[82] The Applicant said they had not opened his door for a muster and that he “carried on like an idiot”. [83]
[82] Exhibit R2, page 263.
[83] Transcript page 108 lines 42 to 43.
On 17 May 2020, the Applicant was verbally abusive towards prison staff. He said they had been locked down for many days, the whole unit was on edge and “they just sort of pinpoint whoever they can”, and he denied it was him.[84] Given the instances of dishonesty that I have mentioned in these reasons, I am not prepared to accept the Applicant’s evidence when it is contradicted by contemporaneously made prison records.
[84] Transcript page 110 lines 19 to 21.
In October 2020 the Applicant completed a “Moderate Intensity Substance Intervention” (“MISI”) course.
On 24 July 2021, the Applicant was abusive towards prison staff.[85]
[85] Exhibit R2, page 158 and 257.
In October 2021 the Applicant commenced a common law claim against the Trustees of the Roman Catholic Church and The Trustees of the Marist Brothers in relation to the sexual abuse he suffered. He was interviewed by Dr Reutens, consultant psychiatrist, for the purpose of that claim. She provided a report in which she diagnosed the Applicant with Post Traumatic Stress Disorder (“PTSD”) and Alcohol, Stimulant and Cannabis Use Disorders (in remission). She concluded that the sexual abuse was a causal factor in the development of the Applicant’s substance abuse.[86] The Applicant’s claim was settled in August 2022 and he received a confidential compensation payment and an agreement that each defendant would pay for up to ten sessions of counselling.[87] Dr Reutens had recommended 20 sessions of trauma-focused therapy with an experienced clinical psychologist, noting that the Australian Psychological Society recommends a fee of $260 per session.[88] According to the Applicant, as he has been in custody, he could not engage in private counselling.[89]
[86]   Exhibit A2 page 45.
[87]    Exhibit A2, page 57 to 58.
[88]    Exhibit A2, page 48.
[89]    Exhibit A4, page 23; Exhibit A4, page 9.
In April 2022 the Applicant’s mother passed away from cancer. The following month the Applicant was released on parole and taken into immigration detention where he remains.
THE MANDATORY CONSIDERATIONS
These reasons will be less repetitive if I address the Considerations that involve the Applicant’s relationships with certain members of the Australian community before I address the rest of the Mandatory Considerations. Therefore, I will address Other Consideration (d) and Primary Consideration 3 first. I will treat as neutral Primary Consideration 2 (family violence), Other Consideration (a) and Other Consideration (c) because no claim relating to them was made or arises from the evidence.
In the presentation of the Applicant’s case, many contentions were made on his behalf in a comprehensive effort to put his case as advantageously as possible. Some contentions can be accepted. Others were, on a proper analysis, speculative or spurious and I have rejected them. To expressly address each one of those would make these reasons onerously long, contrary to the objectives of the Tribunal to deal with matters quickly and efficiently. That I have had regard to all contentions made should be apparent in my analysis of the broad issues to which they relate.
Other Consideration (d) - Links to the Australian Community
In consideration of this Other Consideration, paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia when he was barely a month old, and he has lived here ever since. He is now 47 years old. Australia has always been his home. He has Australian ancestry through his mother, and all his family on his mother’s side are Australian citizens who live in Australia.[90]
[90] Transcript, page 14, lines 38 to 40.
The Applicant started offending 15 years after he arrived in Australia as a baby. Of the 47 years he has spent in Australia, he was a minor for 17 of them, he spent approximately 13 years living in the wider community, and he spent approximately 17 years in prison or immigration detention.
The Applicant has held various types of lawful employment, and presumably paid tax on his income, when he was in the wider community. He did not list any volunteer activities in his revocation request.[91] In his 2011 parole application he claimed to have contributed substantially to Australian society particularly in the area of homeless children,[92] although no details were provided and this claim was not repeated in the Applicant’s revocation request or in this proceeding, so I give it minimal weight. His sister recalled that when he had a lawnmowing business, he offered free lawn mowing to some elderly clients, and he donated money to a young boy who needed a new wheelchair. I accept that overall, he has made a relatively minor positive contribution to the Australian community.
[91] Exhibit G1, G14, page 82
[92] Exhibit R2, page 396.
In terms of community involvement, the Applicant claimed in his revocation request to have been heavily involved in tennis, soccer, football, surfing and wildlife. Details were not provided and these matters were not explored in the hearing. I accept that historically he had some ties to the community through sport and recreational activities. The Applicant does not currently have significant (pro-social) social ties to the wider Australian community.

The Applicant’s grandfather was an Australian Army veteran who served on active duty in Papua New Guinea during World War II. His great-grandfather, also Australian, was wounded in action in France during World War I. It was contended on behalf of the Applicant that this is relevant to the strength, nature, and duration of the Applicant’s ties to Australia, although how it is relevant remains unclear to me. These gentlemen are no longer alive. The Applicant had nothing to do with their war service. There is no evidence that he was ever involved in any activities honouring or assisting veterans or that he has links to any groups or individuals who do that.
The Applicant’s mother recently passed away. His father, with whom he did not have a relationship, is also deceased. Within the Australian community, he has two younger brothers and a sister, five nieces and nephews, two sons and two daughters. His maternal grandmother is alive although she suffers from Alzheimer’s disease. He has an aunt who is close to him in age, and some other relatives. The family members who gave evidence appear to be law-abiding and of good character. The Applicant’s sister and children have dealt admirably with the adversity they have each faced, and they have not engaged in anti-social behaviour. I have no reason to doubt that the Applicant’s other family members are also law-abiding. The Applicant has never been estranged from his family. Rather, he has maintained close, positive relationships with his family despite his incarceration and detention.
The Applicant claims that if he were deported his children would have limited contact with him which would have a devastating effect on their lives.[93] His whole family would be torn apart.[94] The Applicant’s children have lived for most of their lives with limited contact with the Applicant. His removal to New Zealand would change things as far as in-person visits would require his children to travel to New Zealand. I do not accept that the Applicant’s forced absence from Australia would tear his family apart, given they have stuck together during some 20 years of his absence from the wider Australian community.
[93] Exhibit G1, G14, page 85.
[94] Exhibit G1, G14, page 85.
The Applicant referred to his grandmother, cousins and aunts,[95] in his personal circumstances form and said his deportation would a devastating impact on all his family members without going into why,[96] and I think this is an exaggeration.
[95] Exhibit G1, G14, page 79.
[96] Exhibit G1, G14, page 85.
The Applicant’s brother, Brother A, provided a letter of support in which he said he loves the Applicant and does not want him taken to another country that is not his home. He said:
“We have all been there to support and love [the Applicant’s] children over the years, now it is time for [the Applicant] to be there to support his children, and he can’t do that if he isn’t here, in Australia”.[97]
[97] Exhibit G1, G17, page 124.
Brother A did not give evidence and he is currently estranged from the Applicant’s sister because of an issue concerning their mother’s estate. The Applicant’s evidence indicated that this has not hurt the relationship between him and Brother A. I accept that Brother A will suffer some emotional hardship if the Applicant is removed to New Zealand.
The Applicant’s other brother, Brother B, recalled that the Applicant was always there for him when he was growing up and he now wants the chance to be there for the Applicant, which he believes he cannot do if he is in New Zealand.[98] When Brother B was 15 years old (which would have been around 1998/1999) he was getting into trouble at school so the Applicant brought him to live with him and his family, got him a job and helped him to save for enough money to buy his first car. Brother B has assisted the Applicant financially and he helped to look after the Applicant’s children when he was in gaol.[99] In his written evidence, Brother B said that if the Applicant is deported to New Zealand the family would remain fractured and that the Applicant, being the older sibling, is like the glue holding things together since their mother died.[100] When asked about the second half of that statement, Brother B said the Applicant was probably not holding the family together but the Applicant being deported would be the “last kick in the guts” after their mother passed away.[101]
[98] Exhibit G1, G17, page 133.
[99] Exhibit A4, pages 44 to 47.
[100] Exhibit A4, pages 44 to 47.
[101] Transcript, page 188, lines 20 to 41.
Brother B could travel to New Zealand to visit the Applicant but he said visits would be rare given the cost.[102] When giving evidence about the prospect of the Applicant being deported, Brother B, who presented as a quiet man of few words, became overcome with emotion. I accept that he will suffer emotional hardship if the Applicant is deported.
[102] Transcript, page 184, lines 17 to 20.
Brother B’s current partner provided a letter of support in which she said she had come to love the Applicant like a brother. She has never visited him in prison but has spoken with him on the phone multiple times.[103] This person has only ever known the Applicant while he has been incarcerated, and she is not dependent on him in any way. I do not accept that she would suffer any significant impact if he were deported.
[103] Transcript, page 84, pages 56 to 58.
The Applicant’s sister, “Sister C”, is 27 years old. She is engaged to her partner of 11 years who she described as a massive support. For most of Sister C’s life, the Applicant has been in gaol or detention, which has somewhat limited their relationship. Sister C indicated that the Applicant’s numerous periods of imprisonment had “not been easy” on their family. It appears she too took on some of the Applicant’s parenting responsibilities in his absence: she said she always helped to love and protect Son 1, Son 2 and Daughter 1.[104] Despite all of that, Sister C spoke positively about the Applicant, and she clearly loves him.
[104] Exhibit G1, G17 page 129.
In 2012, when the Applicant was on parole, living with Sister C and their mother, he spent a lot of time trying to guide her in the right direction as she was in her last year of high school and did not take schooling seriously. She recalled him also encouraging Son 2 and Daughter 1 through their schooling.
Sister C has suffered from mental health issues over the years, including deep depression for two periods in the last 10 years. Over the last three years she was her mother’s carer as she succumbed to cancer. I accept that this cased her great emotional hardship and that she is still struggling with that and with her mother’s death. Sister C described “picking up the pieces” on her own, and this taking a toll on her mental health. She is not entirely on her own: she has her supportive fiancé, Brother B and his partner. She thinks that if the Applicant were to be deported, she would be able to rally her supports and get the help she needs, although she does not want to have to do that. Those supports include “healing ceremonies” which she attends regularly.
Presently Sister C cannot travel to New Zealand because she is not fully vaccinated. For financial reasons she thinks visits would be minimal in any event. Sister C is in frequent contact with the Applicant via phone calls, video calls and text messages. She was asked if, in the event that the Applicant was removed to New Zealand, she and the Applicant would be able to continue their communication and support each other through that. She said that some sort of contact would continue if the Applicant were in New Zealand but she does not think it would be enough.
I accept that Sister C will suffer emotional hardship, on top of her existing depression, if the Applicant is deported. I am satisfied that she has significant family and other support available, including the Applicant’s support. While in her written evidence she spoke of possibly becoming suicidal if the Applicant is deported, her evidence in the hearing stopped short of that.
The evidence of all three of the Applicant’s children with Ms P was that they were disadvantaged by the Applicant’s absence when he was incarcerated. Son 1, who was eight years old when the Applicant was first incarcerated, considered that he and the Applicant were quite close when he was last out on parole (in 2011/2012), with the Applicant visiting frequently. Son 1 described the feeling, when the Applicant returned to prison, as “Terrible. Didn’t think it was going to happen again.” He thought the Applicant “would have learnt” and he felt angry at him.[105]
[105] Transcript, page 223, lines 13 to 24.
Son 1 is now 27 years old. He lives with Son 2, and Son 2’s partner. He recalled speaking with the Applicant on weekends when he was in prison and the family relocating to be closer to the prison where the Applicant was accommodated. The Applicant encouraged and supported him during his studies, and his supportive nature got him through many situations, including a recent relationship breakdown and his struggles with anxiety and depression.[106] While the Applicant was in prison, he arranged an apprenticeship as a diesel mechanic for him.[107]
[106] Exhibit A4, pages 54 to 55.
[107] Exhibit G1, G17 page 130.
Son 1 takes medication and sees a psychiatrist for anxiety and the depression. He said he misses the Applicant every day, and he is looking forward to building his relationship with him. He would love to be able to see him on a day to-day basis.[108] He did not rule out visits to New Zealand but he said they would be very difficult.
[108] Exhibit A4, page 54.
Son 2, recalled being very angry with the Applicant when he went back to gaol. Son 2, who was six years old when the Applicant was first incarcerated, considers that he missed out on all the years of childhood with the Applicant. I have previously mentioned the QCS file note indicating Son 2 was diagnosed with depression at age seven which was partly attributed to the loss of the Applicant. Son 2 recalled struggling through school, with built-up anger about not having a father. In primary school most of the other students knew his father was in gaol and he was picked on. His anger built up and sometimes he took it out on Ms P. He did not recall being picked on in high school.
Son 2 is 25 years old. Having missed out on having the Applicant around for his childhood, he does not want to miss out on any more time with him. He feels like he has been waiting his whole life to be with his father.[109]
[109] Exhibit A4, pages 51 to 52.
Daughter 1, who was two years old when the Applicant was first incarcerated, said she feels upset with the Applicant. He has not apologised for not being physically there, but she would forgive him - she loves him with all her heart. She is 21 years old and lives with her de facto partner. She recalled the Applicant telephoning every weekend, and every birthday and special occasion. She kept every letter the Applicant wrote to her. If the Applicant is able to remain in Australia, Daughter 1 would be able to spend quality time with him, doing things together that they have not done before. She is looking to get married and start a family and if the Applicant cannot walk her down the aisle and be “the best Grandad” to her future children, it would break her heart and she does not think she would recover from that. She thinks visits to New Zealand, if the Applicant is deported, would be rare.
On three occasions, the Applicant let his known children down by continually committing offences that had the result of making him unable to live with, or near, them in the wider community. I think Daughter 1’s expectation that the Applicant would be “the best Grandad” if he were allowed to stay in Australia is somewhat romanticised. Based on his prior behaviour, any relationship he has with future grandchildren might be from prison. Indeed, the return of the Applicant’s visa will only benefit his children if he does not go back to gaol. Therefore, a revocation decision provides the potential for them to have the benefit of the Applicant’s physical presence in their lives, but it is not a guarantee.
All three adult children are in frequent contact with the Applicant and describe a close positive relationship with him in which he provides advice and encouragement to them. They can each maintain that sort of contact if he is in New Zealand. If he gets his visa back, he intends to live on the Sunshine Coast, where his adult children live, and be spend time with them on a regular basis.
The emotional hardship these children will suffer if the Applicant is deported, and any exacerbation of Son 1’s depression and anxiety, would be tempered by the support network they have. They not only have each other, Son 2 and Daughter 1 have partners, and they all have Ms P and her extended family.
Ms P was barely mentioned in the written evidence, and she was not mentioned in the oral evidence except in response to questions from the Tribunal or the Respondent. However, Ms P was and remains a person of great importance. It was Ms P who raised the Applicant’s three adult children into the impressive adults they are, with help from the Applicant’s siblings. She facilitated and encouraged a relationship between her children and their father, despite the negative impact of his behaviour on her. Son 2 recalled that Ms P suffered a lot when the Applicant was in prison and there were times when he and Ms P would “cry for just - yes, just memories”. Son 2 said that despite the Applicant’s absence for so many years, they have an incredibly strong, supportive and loving family. Ms P must be largely responsible for that. Ms P’s parents also provided a lot of support to the family. Ms P, her parents and a large extended family live on the Sunshine Coast. The children are close with Ms P. It is reasonable to infer that Son 1, Son 2 and Daughter 1 will continue to have her support. I also infer that they will continue to have the support of her parents and benefit from their inclusion in her large extended family.
None of the Applicant’s siblings or adult children are dependent on him, financially or in any practical sense.
The Applicant’s aunt “Aunt S” is nine years older than the Applicant. Growing up they lived in the same house for a while and she described him as being like a brother. She continued to spend time with him when they were adults. Her two adult children do not know the Applicant but they would like to get to know him, and her daughter would like the Applicant to attend her wedding. Aunt S is sure that if the Applicant were to remain in Australia he would visit her and maybe help her with some things around the house that she cannot manage on her own. She did not explain why her children would not do that, and I do not accept that she requires the Applicant’s assistance. I do not accept that either she or her children would suffer significant hardship if the Applicant does not get his visa back although they will be disappointed.
The Applicant’s 93 year old grandmother lives in aged care on the Sunshine Coast. The Applicant has not had any contact with her since his mother passed away in April 2022.[110] Presumably she would benefit from having him visit if she is well enough.
[110] Transcript, page 13, lines 9 to 10.
I do not have sufficient information to make any assessment of the impact of a non-revocation decision on any other of the Applicant’s relatives.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weigh heavily in favour of revocation.
PRIMARY CONSIDERATION 3: The best interests of minor children in Australia
Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s youngest child, Daughter 2 will turn 16 early next year. Her mother, Ms J, suffers from alcoholism and mental health problems and due to her behaviour, Daughter 2 does not currently have a relationship with her. The abuse she suffered while in Ms J’s care caused severe trauma, cognitive delay and other problems. Daughter 2 lived with Ms J in Cairns before she was placed with her maternal grandmother in New South Wales in 2015 at the age of eight. Her current legal guardians, Mr and Mrs M, were providing respite care for Daughter 2 in that period. Mr and Mrs M have been her full-time carers since July 2016. They do not have children of their own. They treat Daughter 2 as their child, and it was undisputed that they have done a wonderful job giving Daughter 2 a stable, loving home where she has made a great deal of progress emotionally and developmentally. She still needs special assistance at school and Ms M is quite protective of her generally.
According to Mrs M, Daughter 2 always believed that the Applicant was her father, and she expressed a desire to know him. According to a letter of support Daughter 2 provided, Mr J always told her the Applicant was her father, and she was told she had a sister and two brothers.[111] Mr and Mrs M, with the co-operation of the Department of Families and Community Services (NSW) (“FACS”) arranged for a DNA test using a sample from the Applicant’s mother (the Applicant could not participate due to being incarcerated) and after paternity was established, they instigated contact between the Applicant and Daughter 2.[112]
[111] Exhibit G1, G17 page 134.
[112] Exhibit G1, G17 page 135.
There were some comments made to the effect that Daughter 2’s existence was kept secret from the Applicant and she was kept away from him. However, he knew about Ms J’s pregnancy and that she subsequently had a baby. He said he suspected the baby was his.
The conversations the Applicant described between himself and Ms J suggest that he did not want the baby she was carrying to be his and that she was aware of that. In one, according to the Applicant:
“the discussion was that I said, ‘Well look, I’ve already got three kids, rah rah’, she goes, ‘Well it’s not your kid anyway, blah blah blah’ so that put that to rest and there was already suspicion of her being unfaithful anyway, so.” [113]
[113] Transcript, page 53, line 44 to page 54, line 2.

In relation to another where he thought the baby was his, she had said “No, it’s not your kid and you have nothing to worry about.”[114]
[114] Transcript, page 144, lines 41 to 45.
The Applicant knew where Ms J had moved to after the threats and she was present at his trial, as was the Applicant’s mother (as she gave evidence). According to Sister C, their mother met Daughter 2 when she was a baby. When Daughter 2 was around two years old, the Applicant’s mother thought she very much resembled the Applicant, however, Ms J would never confirm it.[115] Brother A had also been in contact with Ms J a few times because they both lived on the Gold Coast and Brother A knew the Applicant used to date Ms J. Sister C thinks there was some subsequent contact between her family and Ms J but she did not know the details. She indicated that her family all knew that Ms J was “not really with it mentally”.[116]
[115] Transcript, page 163, lines 25 to 36.
[116] Transcript, page 164, pages 1 to 13.
A copy of the notes of a meeting on 2 February 2016 between Mr and Mrs M and FACS,[117] records Mrs M stating that she had spoken with the Applicant’s mother about Daughter 2 when she was first removed from Ms J’s care and “on various occasions since however not recently”.
[117] Exhibit G1, 18 page 156 and 158.
Given all of this, I do not accept that the Applicant was kept in the dark or kept away or that he was unable to make enquiries about Daughter 2.
In 2020 Daughter 2 provided a letter of support,[118] in which she said she was sad not to have her father in her life growing up, and she felt relieved and excited when she found out the DNA test result. She looks forward to every visit she has with the Applicant and hopes they can in the future “hang out and do things we both like”. She would like him to attend the important milestones in her life.[119]
[118] Exhibit G1, G17 page 134.
[119] Ibid.
According to Mr and Mrs M, Daughter 2 has excelled emotionally and mentally since having regular contact with the Applicant and his family. Daughter 2 has visited at least six times and she has spoken with the Applicant regularly and consistently since the parental relationship was established.
Mrs M gave evidence in the hearing. I found her to be a credible witness who has Daughter 2’s best interests at heart in her words and actions. She will continue to support Daughter 2’s relationship with the Applicant as long as it is a positive one. Daughter 2 will remain in her and Mr M’s care at least until she is 18 and Mrs M thinks this is in her best interests even if the Applicant gets his visa back.
Sister C has standing permission from FACS for Daughter 2 to stay with her. Mr and Mrs M are comfortable to put Daughter 2 on a plane to the Sunshine Coast, knowing the airport is small and easy to navigate and Mrs M’s father lives in the area if his help is needed. They would not be comfortable putting her on a plane to New Zealand, with the big international airport and no-one in the way of “back-up”. There is a possibility that Mr and/or Mrs M could accompany Daughter 2 to New Zealand to visit the Applicant if he is deported. They have taken her on overseas holidays before. Mrs M suffers from rheumatoid arthritis which has flared recently, so it is not known whether or when she would be well enough to travel. There is a theoretical possibility that Daughter 2 could visit New Zealand accompanied by Sister C or one of the Applicant’s children although that has not been explored. The Applicant could, of course, continue to communicate with Daughter 2 the way he does now if he is deported to New Zealand.
Mrs M thinks Daughter 2 would be shattered if the Applicant is deported, and that it would be detrimental to her health, emotional development and mental wellbeing to only have access to the Applicant in a limited capacity (as she does now). She thinks Daughter 2 is craving physical contact such as going to the beach or movies together. The same situation would result from the Applicant getting his visa back then re-offending and returning to gaol. Mrs M thinks Daughter 2 would feel devastated if that were to happen.
Given the poor relationship Daughter 2 has with Ms J, it is significant that she has a positive relationship with her other birth parent. According to Professor Freeman, good parental attachment is important for development and poor attachment is detrimental to a child’s wellbeing. The evidence is overwhelming that Daughter 2 currently has good parental attachment with the Applicant despite his physical absence. I see no reason why that would not continue regardless of where he is situated, although obviously it would be preferable if she could spend time with her father in the wider Australian community and he could be present at important events, assuming he is not using drugs. Professor Freeman suggested that the Applicant’s removal to New Zealand would cause hardship to Daughter 2 with risks to her psychological wellbeing. He did not interview Daughter 2 and he was given very little information about her, which, intending no disrespect to him, limits the value of his opinion. If the Applicant offends and is returned to gaol, Daughter 2 would not get the benefit of him being in the wider Australian community.
Daughter 2 is nearly 16 years old. For the first twelve years of her life she did not have a relationship with the Applicant. For the entire duration of their relationship over the last four years, the Applicant has been in custody. The Applicant’s removal to New Zealand would take away something Daughter 2 has been hoping for and looking forward to. I accept that she will be shattered if that happens. I also accept that she would be shattered if the Applicant is given his visa back only to re-offend and return to gaol, and she would not be able to spend time with him in the community as she hopes to. I consider that there is a real risk that the Applicant will re-offend (see Primary Consideration 1 below).
Daughter 2 is well cared for by Mr and Mrs M who fulfil parental roles while facilitating Daughter 2’s relationship with the Applicant and his family. She has a full life. She has a large extended family through Mr and Mrs M. She has positive relationships with those people. She attends school and she has a job in a mountain bike shop that she enjoys. She has positive relationships with the Applicant’s family on the Sunshine Coast, and she will be able to visit them if she wishes to whether the Applicant is in Australia or not.
154. I am satisfied that Daughter 2’s best interests favour revocation of the cancellation of the Applicant’s visa. The weight this Primary Consideration attracts is limited by various matters that I have mentioned that are relevant to paragraph 8.3 of the Direction. I allocate moderate weight.
Brother B has two children from a previous relationship who predominantly live with their mother. They are 15 and 16 years old. He has two younger children with his current partner. They are six years old and nine months old.[120] The Applicant has had very little to do with these children, he has never fulfilled a parental role and he would not be called upon to do that in the future. They have never been dependent on him in any way, and there is no evidence that they would suffer any adverse impact if he were deported. There is some potential for the Applicant to fulfil a positive role as their uncle if he is in the wider community, although that is less so for the two older children.
[120] Exhibit A4, pages 44 to 47; Transcript, page 178, lines 20 to 26; page 186, lines 29 to 41.
Sister C has a four year old daughter, “Niece C”, who met the Applicant once in person. She described a rather superficial relationship where Niece C sees the Applicant during FaceTime calls and they have little giggles and jokes, and she “goes all silly”. However, I accept there is fondness between the Applicant and Niece C. Like Brother B’s children, Niece C has parents fulfilling the parental role and there is no suggestion that the Applicant would ever be called upon to do that. Niece C also has the benefit of extended family including Brother B’s family and the Applicant’s children. If the Applicant were to live with Sister C, and stay off drugs, he would necessarily be around Niece C and there is potential for him to be a positive influence in her life. If he were to stay in the area in his own home, I presume he would still have contact with Niece C for many years to come.
If the Applicant’s visa is returned to him, his priorities will be his rehabilitation, employment and his children. Realistically, even if he were to stay off drugs, it is unlikely that he would play a major role in the lives of his nieces and nephew and he has not expressed an intention or desire to do that. The best interests of those children weigh in favour of revocation of the cancellation of the Applicant’s visa but only to a minimal degree.
Conclusion: Primary Consideration 3
Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires 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. I 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 applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)…;
(iii)…;
(b)…:
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Between 1990 and 2015, the Applicant committed some 35 offences along with some 11 traffic infringements. This is frequent offending especially given the limited amount of time the Applicant spent in the wider community. The offending did not only involve drug use or supply. It included a property offence, violent offences and three instances of drink driving. The violent offences each involved actual bodily harm. Violent offences are deemed by the Direction to be very serious. The details of the drink driving offences are not before me but that behaviour, by its very nature, is serious because it is well known that driving under the influence of alcohol increases the risk of accidents which can cause injury or death.
The three episodes of drug trafficking were each very serious. The first involved the sale of some $15,000 worth of ecstasy tablets and $5,000 worth of cannabis sativa. The second involved an amount of methamphetamine valued at between $500,000 and around $1,000,000. I acknowledge that, according to the Applicant, he did not know what the package would contain but he suspected it would contain drugs. The most recent trafficking was, in my estimation, extremely serious as the Applicant ran (with a partner) a drug trafficking operation, selling to other suppliers and end users over several months.
At various times, the Applicant has circulated cannabis, methamphetamine and ecstasy within the Australian community. Methamphetamine in particular is a highly addictive drug that causes harm to those who use it, their loved ones and dependents, and the victims of drug related crime. Further, in the most recent offending, he used people who were on parole in his operation. The purpose of parole is to re-introduce prisoners to the community with supervision and support to reduce the risk of relapse and re-offending with the ultimate goal of ensuring the safety of the community. The Applicant not only breached his parole conditions, he also facilitated others breaching theirs. The previous drug trafficking offence (in 2006) was also committed while the Applicant was on parole. In his commission of that offence, the Applicant mislead two innocent people into unwittingly becoming involved which resulted in at least one of them being arrested, charged, prosecuted and put on trial.
A sentence of imprisonment is a last resort in the hierarchy of sentencing options available to a court. Not only was the Applicant given lengthy prison sentences for each of the trafficking offences, for the third, the court made a serious violent offence declaration to ensure he served at least 80% of his sentence in custody to adequately reflect the seriousness of his offending and offending history.
The Applicant provided misleading information in his citizenship application by declaring only a drink driving offence and failing to disclose all of his prior criminal offending. He re-offended after having been formally warned in writing about the consequences of further offending in terms of his migration status.
There is evidence to the effect that the sexual abuse that the Applicant suffered as a child contributed to his drug use (discussed below). It was contended that the sexual abuse is a very substantive mitigating factor that should be taken into account when assessing the Applicant’s criminal history as a whole.
This Primary Consideration calls for an assessment of the nature and seriousness of the offending. It does not refer to subjective, mitigating factors concerning the offender. Such matters are taken into account in the sentence imposed by the criminal courts. The Tribunal is not conducting a sentencing exercise. The abuse the Applicant suffered is not relevant to my assessment of the nature and seriousness of his offending in accordance with paragraph 8.1.2(2)(a) of the Direction.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
According to paragraph 8.1.2(1) of the Direction, in considering the risk to the Australian community, I 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 that it may be repeated may be unacceptable.
In accordance with paragraph 8.1.2(2), I must have regard to the following relevant 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; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
The Applicant’s prior offending is varied. The drink driving offences, assaults and the property offence are all rather dated. The Applicant has not committed offences in those categories since January 2000 when he drove under the influence of alcohol. The previous year he had committed assaults occasioning bodily harm (which he said were alcohol related). Had the Applicant been living in the community for the majority of the period since January 2000 that would go a long way to demonstrating that there is a minimal risk of him committing further similar offences. However, he has spent less than a total of five years in the community since the most recent drink driving and a little longer since the most recent assaults. Further, the Applicant has long term issues with substance abuse, with a history of moving from one substance to another, and he engaged in aggressive behaviour in gaol – kicking a cell door and verbally abusing prison staff – in 2017, 2020 and 2021. Therefore, the possibility of further offending of those kinds cannot be ruled out.
The most entrenched, and the most serious, offending revolves around the supply of dangerous drugs. Over the years the Applicant has put forward various reasons for his involvement in that.
In the Applicant’s 2011 parole application he said he broke his back in a car accident as a teenager, and it did not cause problems until he took up a job with a company de-nutting coconuts,[121] and his injury started interfering with this day-to-day life. He was told he would never work again and he should go on DSP. This caused him to fall into a deep depression and that was the first time he used marijuana. In the Applicant’s revocation request, he said he was put on the DSP in 1997 due to a back injury. He then said, “Eventually I became addicted to marijuana and cocaine”.[122]
[121] Transcript, page 62, lines 1 to 15.
[122] Exhibit G1, page 115.
However, the Applicant told Professor Freeman that he first smoked cannabis when he was 14,[123] and he told a psychologist in immigration detention that he first tried cannabis at age 12, and he smoked it a few times per week in his teenage years and daily as an adult, with his last use ten years ago.[124] In the hearing, the Applicant confirmed that he was using drugs well before he received DSP.[125] I find that the Applicant commenced using cannabis as a teenager, before he was told he could not work.
[123] Exhibit A4, page 6.
[124] Exhibit A4, page 23.
[125] Transcript, page 62, lines 20 to 36.
Further, the Applicant said he did not produce and deal in cannabis solely to pay for his use of that drug. Rather, he found it more convenient than having a normal job. He enjoyed being in the outdoors, growing the marijuana, and being on his own.[126] The Applicant told Dr Reutens that when he was growing marijuana the lifestyle suited him because it afforded him to the ability to be his own boss and he was able to be alone. He did not have to interact with anyone except when he came into town to sell the marijuana.
[126] Transcript, page 74, line 7 to page 75, line 35; page 104, lines 20 to 30; page 140, lines 39 to 46.
In relation to the second offending episode, the cocaine use that had led to the drug debt to Mr T and Mr V appeared to have been partly, but not entirely, a reaction to the breakdown of his relationship with Ms P.
In the Applicant’s revocation request he said the court accepted that the most serious offence in his criminal history was committed under duress, and that his other offences were committed to fund his own addiction. He added:
“the main thing is that it has been explained to me that I have a condition in which I understand what I am doing but I don’t understand why it is wrong or the repercussions. Since finding this out, I consider all my decisions seriously before I act.”[127]
[127] Exhibit G1, G14, page 80.

Professor Freeman’s reference to a poor platform and fragile foundation was not made in the context of attributing the Applicant’s offending to the sexual abuse. On the contrary, Professor Freeman pointed out that some of the Applicant’s anti-social decisions in early adulthood were not consistent with the effects of PTSD.
Given the evidence I have recounted, I do not accept that the childhood sexual abuse determined the Applicant’s offending. To what extent it played a role is a matter of speculation. The totality of the evidence, especially that of the experts, does not provide a clear basis to support the Applicant’s contention that the childhood sexual abuse was the central or even significant factor in his offending.
Professor Freeman noted that past behaviours are one of the best predictors of future behaviour. He opined that the Applicant’s risk re-offending appears to be almost exclusively related to his substance abuse, making poor decisions which may or may not stem from PTSD, and his alignment with individuals who condone or promote drug use. There is a pattern of that behaviour in the Applicant’s lifestyle, and that is his primary risk going forward.
There is not an assessment tool that provides a very good, reliable, accurate, valid measure of the risk of relapse into different sorts of drugs. While Professor Freeman acknowledged that the Applicant did not use methamphetamine in custody and appears to be motivated to avoid relapsing,[153] he said he cannot be considered to be in the low risk category for relapsing into illicit substance use,[154] and he will requires support and monitoring upon his release to avoid relapse or, if he relapses, to avoid spiralling into heavy addiction.[155] He will need to be vigilant for an extended period of time as methamphetamine dependency is usually chronic and requires lasting aftercare.[156] That would be ongoing access to good mental health treatment, not necessarily with the same practitioner, as long as it is ongoing.[157]
[153] Transcript, page 261, lines 1 to 6.
[154] Transcript, page 272, lines 5 to 8.
[155] Transcript, page 266, lines 19 to 25.
[156] Exhibit A4, page 12.
[157] Transcript, page 270 lines 16 to 23.
Professor Freeman agreed with Dr Reutens that the Applicant is likely to experience fluctuations in his PTSD symptoms for the foreseeable future and that his use of suboxone in gaol is indicative of an ongoing reliance on substances to cope with stressors.[158]
[158] Transcript, page 282, line 33 to page 284, line 22.
It is promising that the Applicant has already started doing counselling for the sexual abuse and he is now relying on legal prescription medication for his mental health, which he says is working well in terms of sleep, anxiety and day to day functioning.
I note briefly that, according to Professor Freeman, actual cancellation of the Applicant’s visa is likely to have a bigger deterrent impact on him than a warning or near miss. I accept that the prospect of deportation is much more real this time. However, imprisonment is a very serious negative consequence of offending, and the prospect of being imprisoned was very real to the Applicant previously and it was not enough to deter him from offending.
The Applicant’s visa allows him to live here permanently, and he intends to do that if he is allowed to. I must assess the risk of him re-offending in the future, not only in the short-term. There are a lot of contingencies in relation to the risk of re-offending and it remains to be seen how the resolve the Applicant expresses and the protective factors he has put forward pan out. All of the Applicant’s plans are aspirational: he would be breaking new ground by living a lawful lifestyle in the wider community without substance abuse over a lengthy period, by prioritising his children and by engaging in long-term therapy. That does not mean he cannot do those things, but it would require some very big changes.
I am satisfied that there is a real, and not negligible or minimal, risk that the Applicant will engage in the supply of dangerous drugs including methamphetamine in the future.
The harm from circulating methamphetamine in the community is well known. It is a highly addictive drug that is associated with a multitude of physical health problems and with mental health conditions. It is often associated with violent offending, including family violence, and with crimes that are committed to fund use of the drug. Drug use is well known to be associated with the neglect and abuse of children who are in the care of drug users. The harm from drug addiction, especially methamphetamine addiction, extends to the families of addicts who see their loved one deteriorating before their eyes, and are sometimes the victim of theft or violence from the drug user. The police and medical staff who deal with people affected by methamphetamine face the real possibility of abuse and violence in the performance of their duties. The harm from further supply of dangerous drugs, particularly methamphetamine, is so serious and far-reaching that any material risk is unacceptable. It is difficult to assess the risk of further drink-driving and the other types of offending the Applicant engaged in. Given my findings about further drug supply, I do not think it makes a difference to the outcome.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
The Applicant has lived most of his life in Australia, having arrived here when he was only weeks old.
He has a long history of offending dating back to the age of 15. His offences not only include multiple periods of drug trafficking but also violent offending and three instances of drink-driving which is the kind of conduct that tends to put other road users at risk of serious injury or death. His offending, in totality, is extremely serious, and there is a risk that he will again become involved in the supply of dangerous drugs.
This is not a case where the Applicant had an unremarkable upbringing and got involved in the drug scene. He (at least) initially used alcohol and drugs to self-medicate after suffering sexual abuse and other traumatic and destabilising events. Given that, his breaching of the community’s trust is not, to my mind, as egregious, at least with respect to his earlier offending, as it would otherwise have been. Unfortunately, despite being given multiple opportunities to reform, including two periods of parole, he did not do so. His criminal record as a whole indicates a degree of disregard for the law, the administration of justice, and for the rights and safety of others in the community.
It was contended on the Applicant’s behalf that the sexual abuse he suffered reduces his moral culpability for his offending conduct and therefore entitles him to a greater degree of tolerance than might otherwise be extended to him. Two matters previously decided by the Tribunal (differently constituted) were put forward in support of this contention. In one,[159] the Tribunal accepted that there was reduced moral culpability, although the reasons are not detailed, and that was taken into account in terms of the risks of re-offending. The other matter[160] is more relevant to a couple of different contentions that were made about the sexual abuse and I will discuss it when I address those contentions.
[159] GPDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4362 (“GPDZ”)
[160] XYTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4823, at [143] (“XYTT”).
I considered a contention that an offender’s moral culpability was reduced by his deprived, unstable childhood, and this should weigh in his favour, in Pillay and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Pillay”).[161] There was some discussion about that decision during submissions in the present matter, with the Applicant’s lawyer contending that the adversity suffered by the Applicant in the present case is of a completely different calibre to the adversity suffered by Mr Pillay in his childhood and the impacts are different.[162]
[161] [2022] AATA 270.
[162] Transcript, page 300, lines 25 to 38.
In Pillay I noted that the concept of reduced moral culpability is relevant to sentencing offenders in criminal courts, and I said:
“…the sentencing exercise conducted by courts is fundamentally different to the assessment I am required to undertake, although both take into account the protection of the community”.[163]
[163] Ibid, at [238].
I think it is helpful to expand on that. The Tribunal is not conducting a sentencing exercise. The legislative scheme governing the cancellation of visas on character grounds is not concerned with punishment, deterrence or mercy with respect to offending or other serious conduct. It is protective, not punitive. The cancellation of a non-citizen’s visa may well feel like further punishment to the non-citizen and their family, however that does not mean it is.
The Direction makes it clear that generally a non-citizen may not come to Australia if there is a risk that they will engage in criminal offending or other serious conduct, and a non-citizen who is in Australia may not commit serious offences and continue to have the legal right to remain here. By allowing a non-citizen to enter Australia, the Australian community is conferring a privilege and extending its trust to that person, and that privilege and trust should not be abused by the commission of criminal offences or other serious conduct.
The Direction specifies when greater tolerance should be afforded to a non-citizen who has breached that trust. That is, where they have lived in the community for most of their life or come here at a very young age. Tolerance for any future risk of harm becomes lower as the seriousness of the harm increases. The Direction does not provide for higher tolerance of offending or risk of future offending on the basis of matters personal to a non-citizen that are, or could be, considered mitigating. The character test is not concerned with mitigating factors, only with conduct that has occurred and the risk of certain conduct occurring, as are Primary Considerations 1, 2 and 4.
Primary Consideration 3 is concerned with the best interests of minor children, Other Consideration (c) takes into account impacts on victims, Other Consideration (d) takes into account impacts on Australian businesses and certain members of the Australian community, Other Consideration (a) is concerned with international obligations that Australia might owe with respect to a non-citizen, and Other Consideration (b) is concerned with the non-citizen’s ability to establish themselves in the receiving country and maintain basic living standards. These are all protective of persons (who are not the non-citizen) in the Australian community or of the non-citizen in relation to conditions in the receiving country.
The mandatory considerations are not exhaustive. I should have regard to matters outside the mandatory considerations if that is appropriate given the scope and objects of the legislative scheme. I do not think it is appropriate to take into account reduced moral culpability in relation to offending (if it is established), of itself, when determining whether there is another reason to revoke a mandatory visa cancellation.
That is not to say that the sexual abuse is not relevant. I have taken it, and the other unfortunate aspects of the Applicant’s childhood, into account in my assessment of the risk of further offending and under this Other Consideration as far as those matters are relevant.
Conclusion: Primary Consideration 4
Considering all relevant factors, Primary Consideration 4 weighs heavily against revocation of the cancellation of the Applicant’s visa.
Other Consideration (b) - Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant claimed in a statement dated 18 February 2022 that Mr T and Mr V both live in New Zealand and have done so for several years. He said “I fear that if I am returned to New Zealand my life will be in danger again.”[164] In the hearing he admitted that he had no idea if Mr T or Mr V are currently in New Zealand, that he was never attacked in gaol over the drug debt, that no-one was threatened after he was caught with the methamphetamine and went to gaol, and that he was making an assumption that if Mr T and Mr V were in New Zealand they would “know everyone” and be able to find him.[165] I do not accept that there is any risk from Mr T or Mr V.
[164] Exhibit G1, G16, page 120.
[165] Transcript, pages 69 and 70.
The Applicant is in good physical health except for moderately advanced osteoarthritis in his knees. In June 2022, the International Health and Medical Service (“IHMS”) described the Applicant as physically active but limited by knee pain over the last three months so he could not sustain any length of time doing cardio work at the gym. He was doing exercises to strengthen his quadricep muscles. In the hearing he said he takes anti-inflammatory medication, and his knees are feeling the best they have ever felt. His back injury also got better. He can lift heavy things. New Zealand is broadly comparable with Australia in terms of the standard of healthcare citizens can access. No contention was made that the Applicant could not access his anti-inflammatory medication in New Zealand and I am satisfied that he could. He can maintain a physical exercise routine in New Zealand.
The Applicant expressed concerns that he would be unemployable and homeless in New Zealand. I do not accept that. First, the Applicant will be entitled to government income support in New Zealand. Second, he is not unemployable. In 2011, the Applicant told QCS that he would have no difficulty finding suitable employment given his work history, reputation, penchant to work hard and determination to locate suitable employment quickly on release. He said he had found employment easy to obtain previously.[166] That appears to be accurate. The Applicant has worked as a labourer for various businesses, a plasterer, a coconut de-nutter, a general hand, a self-employed pressure cleaner and he ran his own lawn maintenance business. He has qualifications in information technology, fitness, business, cabinet making and construction. In custody he held employment as a laundry worker, cook, cleaner, senior industry worker and team leader in a metal shop.[167] He has a broad range of experience. In 2021 a former employer of the Applicant wrote a letter confirming that he is prepared to employ him upon his release.[168] I take it that this employer would be prepared to give the Applicant a good reference that he could use to secure employment in New Zealand. I accept, however, that the Applicant would find employment under direct supervision uncomfortable and that might lead to him change jobs or want to be his own boss. The Applicant has demonstrated that he has the initiative to set up his own business.
[166] Exhibit R2, page 71.
[167] Exhibit R2, page 387; Exhibit A4, page 4.
[168] Exhibit G1, G17, page 147.
Third, the Applicant was paid an undisclosed amount of compensation because of the childhood abuse. According to the Applicant, the funds remain under the management of the Public Trustee until the expiration of his sentence in December 2023. The money belongs to him and presumably he could access some for living expenses before December 2023 if he were removed to New Zealand. I am satisfied that the Applicant would have some compensation money at his disposal if he were removed to New Zealand. It was contended that the money is for professional psychological treatment and that is what it should be spent on. However, there was no evidence to support that, and it is inconsistent with the evidence that the settlement included monetary compensation[169] plus the 20 counselling sessions that Dr Reutens recommended.
[169] Transcript, page 58, lines 35 to 46.
There is no-one the Applicant could stay with in New Zealand. He would have to find long-term accommodation, and possibly secure short-term accommodation in the meantime. No evidence was led about the availability of accommodation in New Zealand. If availability is tight, the Applicant may have to make do with a room for rent until he can secure his own place.
The Applicant expressed concerns that he might commit suicide if he had to go to New Zealand because he would be lonely and without support. He does not have any family on his mother’s or father’s side in New Zealand,[170] and he does not know anybody there. While he prefers solitude and he willingly spent months at a time away from his family in the years around 2000, I accept that forced solitude is different.
[170] Exhibit G1, G17 page 127.
The Applicant has demonstrated that he is able to form positive social relationships with people. During his second stint in gaol, he formed a relationship with a woman he had known in the community and he maintained that relationship while on parole. He formed a positive relationship with Brother B’s partner while he was in gaol. He knows how to make new social connections via Facebook. He recently formed a friendship with a woman he met through Facebook with whom he has been communicating by telephone and whom he intends to visit if he gets his visa back. He described her as a “close friend” who understands his situation and helps him “get through things”.[171] He has made a very positive impression on Daughter 2’s guardians. I acknowledge that the Applicant has not, according to him, handled intimate relationships well: he told Dr Reutens he pushed Ms P away and was unfaithful a number of times, he was never emotionally vulnerable with his partners, and he often felt disconnected from people. Dr Reutens opined therefore that his ability to maintain friendships and intimate relationships had been hampered by infidelity and lack of emotional availability. I accept that, but it has not stopped the Applicant from being able to form social connections, even if they were not deep, emotional connections. I am satisfied that the Applicant could establish social connections in New Zealand.
[171] Transcript, page 99, line 43 to page 101, line 36.

Further, the Applicant’s family, who do have deep emotional connections with him, now all know about the childhood abuse and they are sympathetic and supportive. He is being more open with them. They can keep in touch with the Applicant the way they do now and it is likely that they will. I accept that it is not the same as having them around. There are, of course, support groups in New Zealand, such as Narcotics Anonymous, that provide support with a social aspect through meetings and sponsors. I do not accept that the Applicant would feel so lonely and without support that he would become suicidal.
The Applicant speaks English, which is spoken in New Zealand. He has never lived in New Zealand, however New Zealand is not an exotic country, there are many similarities between Australian and New Zealand society, and there are many New Zealanders living in Australia. In 2011, the Applicant told QCS that he is confident interacting in mainstream culture, socialises with people from widely diverse cultural backgrounds, and feels comfortable utilising mainstream health and welfare services.[172] On the other hand he has more recently suggested that he might be institutionalised, having spent so long in gaol, and I accept that this could initially make re-integration into any community, including New Zealand society, challenging.
[172] Exhibit R2, page 75.
The Applicant has Māori heritage on his father’s side but lacks knowledge or experience in Māori culture. It was contended that the Applicant will face cultural barriers in New Zealand on the basis that reassimilation to a foreign country can be especially challenging for members of a particular ethnic group who have been stripped of their culture. To contend that the Applicant – who was born of an Anglo-Australian mother and a Māori New Zealander father – is of a particular ethnic group with a particular culture, that he has been stripped of, which will make it difficult to assimilate into New Zealand society, requires many unspoken assumptions within an evidential vacuum. There are many different ethnicities, and persons of mixed ethnicity, living harmoniously in New Zealand. There is no evidence that the Applicant could not connect with Māori cultural or community groups if he wanted to. No credible detail was given about how or why the Applicant would be disadvantaged in terms of establishing himself and maintaining basic living standards because he is unfamiliar with Māori culture, and I do not accept that he would be.
The Applicant suffers from PTSD and he currently takes Prozac which is helping. He will suffer emotional hardship on top of that if he is permanently kept away from Australia where his family all live. Professor Freeman opined that if the Applicant were exposed to multiple stressors at once, for instance “accommodation or employment or support networks or finding treatment for his psychological disorder” that would likely exacerbate his PTSD and make it more difficult for him to assimilate into a foreign environment.
The Applicant’s adult siblings and children have all proven their devotion to him since he was first incarcerated. They have not given up or drifted away from the Applicant, and they have each pledged their ongoing support. I am satisfied that they will stay in contact with the Applicant and provide emotional support.
The Applicant does not know how he will access the 20 trauma counselling sessions that have been offered by the defendants in the civil claim (except that he could not access them in custody). However, he does not think they have to be through a particular provider or accessed in a particular period. He expects he will get a referral from his general practitioner. He would prefer in-person sessions.
The Applicant does not need a referral for a clinical psychologist in Australia. There is no evidence that the Applicant could not engage in trauma therapy with a psychologist in Australia from New Zealand (via video conference). This is something the Applicant (or someone on his behalf) could have looked into but apparently did not. Nor is there any evidence that the sessions have to be with an Australian provider. Again, that is something the Applicant could have looked into. There is some evidence before the Tribunal that mental health services in New Zealand are not meeting demand. I am not satisfied that removal to New Zealand would mean the Applicant could not access the 20 therapy sessions, although they may be by video conference or there might be a delay involved.
The Applicant has some diagnosed drug dependencies in sustained remission and a methamphetamine dependency in partial remission. The risk that he will relapse into drug use is above low according to Professor Freeman and “likely” according to Dr Reutens. The Applicant said it would be harder to avoid drugs in New Zealand as to succeed he needs his family and friend around him.
The Applicant is going to face some challenges, transitioning from a long period in custody to the wider community, finding accommodation and cultivating a social network, dealing with emotional hardship, and trying to manage his mental health. I do not think these are insurmountable. Given his drug dependencies, there is a risk that the Applicant will relapse into drug use. However, that has not previously rendered him unable to maintain basic living standards. I am satisfied that the Applicant will be able to establish himself and maintain basic living standards in New Zealand.
This Other Consideration (b) weighs to a significant degree in favour of revocation of the mandatory cancellation.
ADDITIONAL MATTERS PUT FORWARD BY THE APPLICANT
Own country
The Applicant claims that he classes himself as 100% Australian, that Australia is his home, and that New Zealand is a foreign country to him.[173] I accept that.
[173] Exhibit G1, G14, page 87.
A submission accompanying the Applicant’s revocation request (made by his previous lawyers) contended that deporting the Applicant could cause Australia to breach its obligations under the International Covenant on Civil and Political Rights (“ICCPR”) which it ratified on 13 August 1980. Article 12(4) of the ICCPR states:
“No one shall be arbitrarily deprived of the right to enter his own country”
Article 17(1) of the ICCPR states:
“No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence…”
It was contended the United Nations Human Rights Committee’s decision of Nystrom v Australia, (“Nystrom”),[174] identified factors relevant to one’s “own country” for the purposes of Article 12(4) of the ICCPR as being:
(a) long standing residence in that country;
(b) close personal and familial ties and an intention to remain in that country; and
(c) the absence of personal and familial ties in another country.
[174] Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 August 2011).
This describes the Applicant’s circumstances.
The Applicant’s current lawyer did not advance this argument but did not withdraw it either. The Committee’s reasons in Nystrom were heavily dependent on the concept of proportionality in assessing whether Mr Nystrom’s detention or deportation were arbitrary. The Committee placed significance on the fact that the Minister had decided to cancel Mr Nystrom’s visa some years after he was released from his most recent prison sentence during a period when he was rehabilitating.
International treaties apply to the extent that they have been implemented in domestic law, or that they appropriately inform the interpretation of domestic law. The relevant legislation and the Direction are quite clear in their application to the present matter. Separate reference to the ICCPR is not required. In any event, the deportation of the Applicant is not a disproportionate response to his past offending, his risk of re-offending and the nature and seriousness of harm from re-offending cumulatively, so removal to New Zealand would not be inconsistent with the relevant Articles.
Child Sexual Abuse
The Applicant considers that he should be allowed to stay in Australia because, if not for the sexual abuse that was perpetrated upon him in Australia, he would not have offended. He said (before his civil claim settled):
“…I don’t believe it is morally right to deport me, after everything I went through as an innocent child, I was robbed of my innocence and childhood and obviously my adult life, and now I have addressed my issues from when I was a child. I’m actually still working on how to deal with my past experiences as a child. After all that I’ve been through since a child the Australian government wants to now deport me to a foreign country, at a time when I need their support to get through my legal issues. It wouldn’t be morally right to deport me, I believe that they must take some of the responsibility about what happened to me, it’s only fair, also my support networks are here in Australia…”[175]
[175] Exhibit G1, G14, pages 91 to 92.
This is where the second Tribunal decision put forward by the Applicant is relevant. In XYTT, a non-citizen (“XYTT”) who had lived in Australia from the age of six months had been sexually abused in two Catholic run schools in Western Australia for a total period of around 10 months. The abuse started when he was eight years old. He was subsequently sent to the Riverbank Reformatory, operated by the State of Western Australia, where he was abused by a male officer, “S”. He ran away and was returned several times. At one point, after getting away from Riverbank, he was required to appear before an inquisitorial panel which he thought was comprised of people from the Child Welfare Department who were investigating whether S and another officer had been abusing boys at Riverbank. However, he was subsequently returned to Riverbank where S and another officer abused him. The only help he received from any person representing the government or the community who was on notice that abuse was occurring at Riverbank was a Children’s Court Magistrate who sentenced XYTT to prison (at age 16 and nine months) rather than returning him to Riverbank after he asked for that outcome because at Riverbank “they force me to have sex with them”. Unfortunately, he was returned to Riverbank after that sentence finished.
In that matter, the Tribunal accepted that the abuse contributed to XYTT’s offending and it reduced his criminal responsibility with respect to the entirety of his offending. The Applicant and Respondent agreed that the institutionalised sexual abuse he suffered at the hands of the Christian Brothers and when he was a ward of the State of Western Australia was relevant and should appropriately be considered as a separate other consideration. Senior Member Evans-Bonner concluded that:
“…the duration, severity and persistence of the abuse of the Applicant over many years and involving many perpetrators who were in positions of trust, including state sanctioned positions of trust, resulted in there being little to no chance of his leading a normal, law abiding and drug-free life…The horrific sexual abuse perpetrated upon the Applicant when he was a child in the care of the Christian Brothers’ and subsequently the State of Western Australia by persons in positions of trust diminishes the Applicant’s criminal responsibility and provides substantial justification to the Applicant being permitted to stay in Australia.”
XYTT was sexually abused from the age of eight to 17, and the Western Australian government was, through its agents and employees, responsible for most of it. Where a non-citizen has come to Australia and been subjected to serious abuse perpetrated or knowingly allowed by the state, and that abuse substantially contributed to the non-citizen committing offences, there is an element of unfairness in the Australian government removing the non-citizen because of that offending. It is something that, as a matter of public policy, should weigh in favour of the non-citizen being allowed to remain in Australia. Whether the Tribunal is permitted to do that, given the legislative scheme being applied, is a question that does not need to be answered in the present case because I have not accepted that the childhood sexual abuse suffered by the Applicant was a significant contributor to his serious drug offending, and there is no evidence that the Australian government or a State or Territory government or their agencies caused the abuse perpetrated on the Applicant or knowing failed to act to stop it.
The Applicant has been compensated by the entities who were responsible, and that compensation package includes money along with therapeutic treatment. The Applicant’s legal representative contended that to remove the Applicant from Australia, just when he is in a position, both practically and mentally, to access treatment and support for his “abuse injuries” is inconsistent with the framework that has been adopted by the Australian Government to support survivors of institutional sexual abuse. That submission partly depends on a finding that the Applicant could not access psychological treatment if he were in New Zealand. There was not any definite evidence about that one way or another, so I am unable to make that finding. The submission also assumes the Applicant could not access relevant support in New Zealand. Given the family support I referred to above under Other Consideration (b) I do not accept that.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1 and 4 cumulatively weigh very heavily against revoking the cancellation of the Applicant’s visa. I have a great deal of sympathy for the Applicant’s children and siblings. I acknowledge the Applicant’s traumatic childhood, including terrible abuse at two schools, his ties to Australia where he has lived virtually all his life, and the difficulties he will face being removed to New Zealand. However, there are other people whose interests should be taken into account, namely the membership of the Australian community. The Applicant committed some very serious offences, the risk that he will again circulate dangerous drugs in the community is unacceptable due to the resultant harm, and there is a risk that he will re-offend in that way. Primary Consideration 3, and Other Considerations (b) and (d) combined are not sufficiently compelling to outweigh Primary Considerations 1 and 4. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.

I certify that the preceding 270 (two hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

..........................[SGD]..............................................
Associate
Dated: 2 November 2022

Date of hearing: 29 and 30 August, 2 and 6 September 2022

Solicitor for the Applicant:

Ms Caitlin White

Fisher Dore Lawyers

Solicitor for the Respondent
Mr David McLaren

MinterEllison

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G22 paged 1 to 229)

R

-

11 July 2022

A1

Applicant's Statement of Facts, Issues and Contentions (14 pages)

A

-

2 August 2022

A2

Applicant’s Additional Evidence (paged 1 to 60)

A

-

2 August 2022

A3

Applicant’s Reply (8 pages)

A

24 August 2022

24 August 2022

A4

Applicant’s Supplementary Evidence (paged 1 to 86)

A

-

24 August 2022

A5

Information on availability of sexual abuse trauma counselling in custody (12 pages)

A

-

30 August 2022

R1

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 12)

R

18 August 2022

18 August 2022

R2

Respondent’s Tender Bundle (paged 1 to 598)

R

-

18 August 2022

R3

Respondent’s Additional Documents (110 pages)

R

-

25 August 2022

R4

Respondent’s Further Additional Documents (25 pages)

R

-

26 August 2022

[2022] AATA 3657

15 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G22 paged 1 to 229)	R	-	11 July 2022
A1	Applicant's Statement of Facts, Issues and Contentions (14 pages)	A	-	2 August 2022
A2	Applicant’s Additional Evidence (paged 1 to 60)	A	-	2 August 2022
A3	Applicant’s Reply (8 pages)	A	24 August 2022	24 August 2022
A4	Applicant’s Supplementary Evidence (paged 1 to 86)	A	-	24 August 2022
A5	Information on availability of sexual abuse trauma counselling in custody (12 pages)	A	-	30 August 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 12)	R	18 August 2022	18 August 2022
R2	Respondent’s Tender Bundle (paged 1 to 598)	R	-	18 August 2022
R3	Respondent’s Additional Documents (110 pages)	R	-	25 August 2022
R4	Respondent’s Further Additional Documents (25 pages)	R	-	26 August 2022