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

DTCB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 833 (12 April 2021)
Division:GENERAL DIVISION
File Number: 2021/0403
Re:DTCB
APPLICANT

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

DECISION
Tribunal:Member R Maguire
Date:12 April 2021
Place:Brisbane

the reviewable decision is affirmed.
..............................[SGD]....................................
Member R Maguire
Catchwords
MIGRATION – non-revocation of mandatory cancellation – Class TY Subclass 444 Special Category (Temporary) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – consideration of Ministerial Direction No 79 – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulation 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs[2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337
Lau and Minister for Immigration and Border Protection [2017] AATA 138
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tahuriorangi and Minister for Immigration and Border Protection (Migration) [2018] AATA 2158
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Member R Maguire
12 April 2021
Index
Decision
REASONS FOR DECISION
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Documentary evidence
Statement of DTCB
Statutory Declaration of Mrs P – Mother
Statutory Declaration of Mr P
Statutory Declaration of RG
Statutory Declaration of IP – Brother in law
Statutory Declaration of SP – Applicant’s sister
Statutory Declaration of BP – Sister in law
Statutory Declaration of WP – Brother
Further Evidence
Further Statement of Professor James Freeman dated 19 March 2021.
Judicial Commentary Relating to the Applicant’s Offending
the hearing
The Applicant
Oral evidence of WP
Oral Evidence of SP
Oral Evidence of Mrs P
Oral Evidence of Professor Freeman
Oral evidence of Mr P
Oral evidence of PO
Closing Submissions
Primary Consideration A – Protection of the Australian Community
Application of Factors in Paragraph 13.1.1(1) of the Direction
13.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
13.1.2 (1)(a) The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
13.1.2 (1)(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct

Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Findings: Other Considerations
Conclusion
Decision
Annexure A
INTRODUCTION AND BACKGROUND

The Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 18 January 2021[1] made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”).
[1] Exhibit G1, G Documents, G2 at pages 10-17.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;…
The Applicant is a 29 year old male citizen of New Zealand.[2] He first arrived in Australia on 1 June 2000 at the age of nine years.[3]
[2] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 2, paragraph 4.
[3] Ibid.
On 19 December 2017, the Applicant was convicted in the Supreme Court of Queensland of Possess Illicit Drug and sentenced to 3 years’ imprisonment.[4]
[4] Exhibit G1, G documents, G2 at pages 46, 268 and 59-63.
On 7 August 2018, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7)(c),[5] i.e. that he had been sentenced to 12 months or more imprisonment.
[5] Exhibit G1, G Documents, G2 at page 6, 263-267.
Notice of this decision was given to the Applicant by hand. In accordance with Regulation 2.52(2)(b) the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations[6] to the Minister on 31 August 2018 within the period and in the manner specified.
[6] Exhibit G1, G Documents, G2 at pages 70-90.
On 18 January 2021, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[7] and on 25 January 2021 the Applicant made the present application to this Tribunal for a review of that decision.[8] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[9]
[7] Exhibit G1, G Documents, G2 at pages 10-17.
[8] Exhibit G1, G Documents, G1 at pages 3-8.
[9] The Act, section 500(6B).
The hearing of the instant application took place on 24 and 25 March 2021. The Applicant appeared via video link, and was represented by Ms Caitlin White of Fisher Dore Lawyers. Mr Ingmar Duldig of Clayton Utz appeared for the Respondent. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received oral evidence from the numerous witnesses discussed below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) of the Act, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975[10] to affirm the decision under review. At the hearing, the representatives of the parties agreed that for the purposes of this review, and section 500(6L)(c), the 84^th day is Monday 12 April 2021. It is therefore open to the Tribunal to make a decision prior to midnight on that date.
[10] (Cth).
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
1The 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.
It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; or
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the cancellation of the Applicant’s visa should be revoked.
In considering section 501(CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) 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”. Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
The Applicant was convicted in the Supreme Court of Queensland on 19 December 2017 of offences which Atkinson J described as “shocking persistent offending”.[13] Her Honour imposed concurrent sentences of three years’ imprisonment, two and a half years’ imprisonment, two years imprisonment, and six months imprisonment.[14]
[13] Exhibit G1, G Documents, G2 at page 62.
[14] ibid at page 63.
As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act.
The Tribunal notes that the Applicant has quite properly conceded that he does not pass the character test as prescribed by section 501 of the Act.[15]
[15] Exhibit A1, Applicant's Statement of Facts Issues and Contentions (SFIC) at paragraph [16].
The Tribunal therefore finds that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[16] of the Act for the mandatory cancellation of his visa to be revoked.
[16] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 79
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[17] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[18]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[17] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[18] The Direction, sub-paragraph 7(1)(b).
In paragraph 6.2(3) of the Preamble, the Direction provides:
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered… in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2(3) are found in paragraph 6.3 of the Direction, and 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-citizen’s in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In the circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen ’s visa should be cancelled, or the visa application refused.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
Three primary mandatory considerations relevant in the context of a revocation decision appear in Part C of the Direction at paragraph 13:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[19]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[19] [2018] FCA 594 at [23].
DOCUMENTARY EVIDENCE
On 31 August 2018, Messrs Fisher Dore Criminal Defence Lawyers submitted a Request for Revocation form[20] together with a Personal Circumstances form[21] both of which were completed by the Applicant and dated 30 August 2018.
[20] Exhibit G1, G Documents, G2 at Pages 75-78.
[21] Exhibit G1, G Documents, G2 at Pages 79-90.
In the body of the Request for Revocation the Applicant stated he was a citizen of New Zealand born in May 1991.[22] He also stated:[23]
I have lived in Australia since I was nine years old. All my family are here who I am extremely close to, including my mother, stepfather, brother, sister, nieces and nephews. I cannot imagine leaving them and returning to a country that I can barely remember, where I have no one. I’ve completed primary school and year 10 in Australia and worked here for several years. I know I have made some mistakes which I can’t take back. I won’t make these mistakes again I’m doing all I can to get the professional help I need. I know I won’t relapse again. My life and family are here. Please don’t take me away from them.
[22] Exhibit G1, G Documents, G2 Pages 75-78 at 75.
[23] Exhibit G1, G Documents G2, Pages 75-78 at 77.

In the body of his Personal Circumstances Form, the Applicant stated that he first arrived in Australia in approximately the year 2000 in company with his mother, sister, and brother.[24] He said he had been in a relationship[25] with a Ms Patrick since March 2018. When asked to describe the impact the cancellation of his visa would have on his partner, he stated:[26]
I am all that [she] has. She has been heartbroken by what’s happened with my visa cancellation. She has no family and she’s terrified of losing me. She has never been to New Zealand and would have to rebuild her life from scratch where we have no one to help us.
[24] Exhibit G1, G Documents, G2 Pages 79-90 at 80.
[25] Exhibit G1, G Documents, G2 Pages 79-90 at 81.
[26] Exhibit G1, G Documents G2, Pages 79-90 at 82.
When asked to nominate minor children who may be affected by his visa cancellation, the Applicant nominated for children as follows:[27]
(a) Nephew 1 born 12 July 2014, an Australian citizen, the son of his brother;
(b) Niece 1 born 14 March 2017, an Australian citizen, the daughter of his brother;
(c) Nephew 2 born 5 September 2009, an Australian citizen the son of his sister;
(d) Niece 2 born 26 March 2012, an Australian citizen, the daughter of his sister.
[27] Exhibit G1, G Documents G2, Pages 79-90 at 83.
The children all reside with their respective parents.
Describing his relationship with these children, the Applicant said:[28]
I’m very close with my nieces and nephews, in particular [nephew 2] and [niece 2]. My family are really close and we see each other every fortnight. I spend a lot of time with them, including taking them to the park, games etc. I’m particularly close with [nephew 2] and [niece 2] because their mother, my sister, [SP] is unwell and has meningitis of the brain. Her husband [IP] usually works nights, so I do a lot of babysitting for [nephew 2] and [niece 2]. I also watch [nephew 2’s] rugby games and take him out as much as I can.
[28] Exhibit G1, G Documents G2, Pages 79-90 at 84.
Describing the impact the cancellation of his visa would have on these children, the Applicant said:[29]
My nieces and nephews don’t know I’m in prison as we think it will upset them too much. I speak to them on the phone regularly, they think I’m away for work. They’re looking after my dog, Roscoe. It would be really hard on them if I was deported to the UK. They rely on me a lot particularly [nephew 2], who has ADHD and dyslexia. He’s been really down when spoken to him recently and keeps asking me where I am. It’s distressing that I’m upsetting him by being away in prison.
[29] Exhibit G1, G Documents G2, Pages 79-90 at 84.
In terms of family details, the Applicant described his mother, sister and brother all of whom are New Zealand citizens resident in Australia and his stepfather who is an Australian citizen resident in Australia. The only other close family member described was an aunt who is also a New Zealand citizen resident in Australia.[30]
[30] Exhibit G1, G Documents G2, Pages 79-90 at 85.
In describing the impact the cancellation of his visa would have on his family, the Applicant said:[31]
I’m extremely close with my family they’re devastated I’m back in custody and facing permanent deportation. My mum relies on me a lot and calls me her rock. She’s been so worried about me and I’m worried I could put her health in jeopardy if I’m deported. I’m also really close with my brother and sister and help them out a lot.
[31] Exhibit G1, G Documents G2, Pages 79-90 at 85.
On the subject of factors that helped to explain his offences which should be taken into account by the decision-maker, the Applicant stated:[32]
I take responsibility for my criminal history which occurred when I was struggling with a drug addiction. All of my offences occurred when I was under the influence of drugs. I hung around with a bad crowd when I was younger who exposed me to drug use. My substance abuse escalated. I’ve been able to re-gain (sic) control but then events took place which put me back onto drugs again.
[32] Exhibit G1, G Documents G2, Pages 79-90 at 86.
The Applicant acknowledged that he had received a warning from the Department around 2010, and commented:[33]
I didn’t really understand the warning and what would happen. I was committed to avoiding drugs and staying out of prison but when I relapsed I didn’t have any control over what I was doing.
[33] Exhibit G1, G Documents, G2, Pages 79-90 at 86. The Applicant later accepted his signature was on an acknowledgement letter dated 17 March 2011: Exhibit G1, G Documents, G2 Page 100 at [55].
In terms of the likelihood that he would reoffend, the Applicant stated:[34]
I won’t reoffend again because I know what’s at stake. The cancellation of my visa has been the wake-up call that I needed to get help so that I won’t relapse. I have a very loving and supportive family who are counting on me and a job lined up.
[34] Exhibit G1, G Documents, G2, Pages 79-90 at 86.
Regarding courses and programs he had completed, the Applicant stated:[35]
Yes I’ve completed a short drug abuse program in prison in 2016. I’m doing everything I can to get treatment for my drug problem in prison. I’ve asked my lawyers to do whatever is possible to get me professional counselling as there are almost no drug programs run at (sic) Brisbane Correctional Centre. I’m trying to get a prison transfer to a place where I can access rehab programs.
[35] Exhibit G1, G Documents, G2, Pages 79-90 at 86.
The Applicant acknowledged that he had further charges which were yet to be dealt with:[36]
Yes, I’ve been charged with several offences, mostly drug possession and property and utensils connected with drugs and a weapons charge.
[36] Exhibit G1, G Documents G2, Pages 79-90 at 87.
Regarding the strength nature and duration of his ties to Australia, the Applicant stated that he had completed primary school at Sunnybank Hills primary school, and year 10 at Nyanda State High School, and he then withdrew to do an apprenticeship. He listed periods of employment from 2008 to 2012 as an apprenticed cabinet maker. In 2012 he worked firstly as a labourer, and then as a sheet metalworker until 2013. From 2013 to 2015 he worked as a forklift driver[37].
[37] Exhibit G1, G Documents G2, Pages 79-90 at 87.
The Applicant listed participation in his local football club since he had been in grade 8 as his positive contribution to the Australian community.[38]
[38] Exhibit G1, G Documents G2, Pages 79-90 at 87.
The Applicant described the hardship which his removal from Australia would cause to members of the Australian community in the following terms:[39]
It would devastate my family who relies (sic) on me in so many ways, including supporting them, looking after my nieces and nephews. I’m also worried for my partner, I’m all she has. I’m particularly worried my mother wouldn’t cope if I were deported.
[39] Exhibit G1, G Documents G2, Pages 79-90 at 87.
In terms of impediments to his return to New Zealand, the Applicant stated that he did not have any diagnosed medical or psychological conditions. Neither did he face any criminal charges or convictions in his country of citizenship. He expressed concerns about his return as follows:[40]
I have nowhere to live, nowhere to go and no supports. I’m worried my biological father will find out I’m being deported. ... I left New Zealand without telling him.
[40] Exhibit G1, G Documents G2, Pages 79-90 at 88.
The Applicant explained other problems he would face in New Zealand as follows:[41]
I have never worked in New Zealand before. With no family, no support and no chance to see my family again, who can’t visit me due to their health issues, and its (sic) too expensive. I’m worried I won’t cope.
[41] Exhibit G1, G Documents G2, Pages 79-90 at 89.
The Applicant wanted the decision-maker to consider:[42]
I’m only 27 years old. I’ve lived most of my life here and Australia is all I really know. I want the chance to prove that I can be trusted and I can break this cycle. I have so many people counting on me. My mum and sister have serious health issues and I’m worried if I were deported that they’d deteriorate massively. Please give me a chance to show I’m not a risk. I can beat this habit.
[42] Exhibit G1, G Documents G2, Pages 79-90 at 89.
In support of his request for the revocation of the cancellation of his visa, the Applicant provided an 80 paragraph statement[43] in which he gave detailed comment on the totality of his circumstances. That statement is as follows:
[43] Exhibit G1, G Documents G2, Pages at 93-103.
Statement of DTCB
I, [DTCB], born [redacted] May 1991, of Woodford Correctional Centre in the State of Queensland, hereby state:
1.    I was born on [redacted] May 1991 in Palmerstone in New Zealand. I am 29 years old.
2.    I am a New Zealand citizen and have lived in Australia since I was around 9 years old. All my family live in Australia.
3.    My Special Category Visa was cancelled in August 2018 due to my criminal history.
4.    I make this statement in support of my request to reinstate my visa so I can stay in Australia and have the support of my family so I can overcome my drug addiction. Without their support, I feel that I will never beat this.
Family
5.    My mum and father separated when I was a baby. My mum later met and married my stepfather, [Mr P]. They have been together for more than 20 years and live in Sunnybank Hills.
6.    My mum is [Ms P]. She is 62 years old. She has lived in Australia since 2000/ (sic) she has worked in customer service jobs in disability support services, including Spinal-Life Australia and Nextt Disability Services. Her health issues have recently prevented her working. She had a stroke last month and was off work for a few weeks.
7.    My stepdad is [Mr P]. He is 73 years old. He is employed as a car salesman for Car Finance Factory. He has been more of a father to me than my biological father and we have a good relationship. He has supported me in many ways.
8.    My biological dad is [redacted]. He is a New Zealand citizen and to my knowledge, he still lives there. He and my mum separated when I was a baby when he was violent to her. I saw my biological father from time to time after their separation. He would occasionally take us kids out for a weekend but that was pretty rare. I have had very little contact with him since we moved to Australia in 2000. I visited him once in around [redacted] (discussed below).
9.    I have been told my father has a criminal record and has been in prison in New Zealand. He is also associated with, if not a member of, the Mongrel Mob.
10. My sister is [SP]. She is 38 years old and is married to her husband [redacted], who is an Australian citizen. [SP] was previously employed as a case manager for people with disabilities and is now employed as a carer for people with cerebral palsy and mental health issues. [SP] is unable to work as she suffers from significant health problems. She is on disability support pension. They live in Algester, Brisbane and have two children, [nephew 2] and [niece 2].
11. My brother is [WP]. He is 31 years old. He runs his own business working in car repairs and selling car parts. His partner is [redacted], who is an Australian citizen. [redacted] works part-time as a sales assistant with Robin’s Kitchen. She previously worked as a legal receptionist until their first child was born. They live in Kuraby, Brisbane. They have two children, [nephew 1] and [niece 1].
12. I have four nieces and nephews who are all Australian citizens:
·     [Nephew 2] is 10 years old. He is in grade 6 at [redacted] Primary School. He has ADHD and is dyslexic.
·     [Niece 2] is 6 years old and is in grade two at [redacted] Primary School.
·     [Nephew 1] is 5 years old and is in prep at [redacted] Primary School.
·     [Niece 1] is around 2 and a half years old.
13. I am particularly close with [Nephew 2] and [Niece 2] as I have babysat them a lot of the years due to my sister’s health issues and when she was in hospital. I was doing this around 3 to 4 times a week and would pick them up from school or kindy, take them home, cook them dinner and get them ready for bed while [SP] was at work.
14. I haven’t seen [Nephew 2] or [Niece 2] since I came into prison in July 2018 because we don’t want them seeing me in prison. I speak to them on the phone regularly. The kids have been told I am working outside of Brisbane as [IP] and [SP] don’t want them distressed. They’re currently looking after my dog, Rosco, who is a rescue Staffordshire bull terrier. I’ve had him for five years.
15. Both my mum and sister [SP] have significant health problems.
16. [SP] has meningitis of the brain. She was diagnosed with this around five years ago and has been in hospital a lot. Sometimes she is so unwell that she can’t get out of bed or help with the kids.
17. My mum also has emphysema and a respiratory disease. Because of her health issues and my stepdad’s age, I have helped out a lot of with property, doing maintenance and home repairs, particularly when mum was in hospital for several weeks in 2017.
18. I am very close to my family. We all live on the south side of Brisbane and usually see each other several times a week for dinner or stopping by for a cup of tea and visiting my nieces and nephews.
19. None of my family have any criminal history in Australia except my brother who had some troubles with the law when he was around 17 years old. He has not had any issues since and is a really great dad to his kids while running his own successful business.
Residency In Australia
20. In around 2000, I moved with my family to Australia. I was around 9 years old at the time. I have lived here ever since.
21. We moved to Australia because my stepdad was offered a job and they thought we would have a better life and better work opportunities in Australia. Most of mum’s family and all of my stepdad’s family were already living in Australia.
22. I have only left Australia once since I moved here. In around [redacted], I went back to New Zealand to live with my biological father for a couple months. I talked about it with my mum and we thought it would be a good chance for me to have a fresh start, be drug free and to get away from my mates who were drug users. We spoke to my father who said he could set me up with a job.
23. It was a terrible experience. My father was physically and verbally abusive to me within the first week of me arriving in New Zealand. This happened almost every day I was there after the first week. He drank constantly and would become abusive when drinking. I ended up coming back to Australia early because it was such a bad experience. On the day I left New Zealand, my father came home from work and was violent towards me. I grabbed all my stuff and got on the next plane home to Australia. I have not spoken to him since.
24. I spoke to my family, particularly my mum, all the time while I was in New Zealand. I did not tell them about what my father was doing to me as I didn’t want to worry them. I spoke to my mum about it once I came back. She was really upset.
Education
25. I completed until around year [redacted] at [redacted] Primary School in Palmerstone North.
26. I completed primary school at [redacted] Priamry School in Brisbane.
27. I completed year 10 at [redacted] State High School in Brisbane. I did around 6 months of year 11 before I left school in around 2008 to do an apprenticeship through All Trades.
28. I have a heavy forklift license that I obtained in around 2013. I got this qualification through my employment with RE Pascoe based in Rocklea.
29. I used to play rugby league at Sunnybank and [redacted] rugby league club. I was involved in these clubs between 2005 and 2010.
Work History
30. I was around sixteen years old when I left school. I worked as an apprentice cabinet marker between 2008 and 2010. I didn’t complete my apprenticeship as the company went in to liquidation. I tried to find another place to complete my apprenticeship through All Trades but they weren’t able to find a place for me. I instead began working as a labourer.
31. In around 2010, I started working as a full-time labourer for Tankworks in Archerfield. I was mainly doing sheet metal work for rainwater tanks. I worked for Tankworks for around a year.
32. My next job was with Pipworks for around three to four months as a machine operator.
33. I was then employed as a labourer at All Staff, Morooka in 2012 for about a year.
34. From 2013 to 2015, I was employed as a forklift driver at RE Pascoe in Rocklea. This was not continuous work as I was in New Zealand for a couple of months as stated above. I was then employed as a forklift driver at Polar Fresh in Browns Plains for a couple of months.
35. I have found it hard to get work because of my criminal history.
Drug Addiction
36. All my criminal history relates to drug use, especially methamphetamine (ice). By this, I mean I was either on drugs at the time and/or committing crime, including dealing drugs, to pay for my drug use. I know this does not excuse what I have done and I am responsible for my actions.
37. I was first introduced to marijuana by some friends I met at school I was around 15 years old. I didn’t think it was serious drug use. I did it to relax and be sociable, mostly on weekends whenever I was with my friends. I began to use it more regularly until I was introduced to ice. Marijuana does not impact me the same way that ice does but I have done stupid things when I have been on this drug. I accept it is just as bad for me as ice is.
38. I began using ice in around 2010. I was spending time with some people I met through my job who were regularly using ice. I tried it and began using it more and more to the point where I was using it ever day including on my own. I later began selling drugs to pay for my habit.
39. My addiction has ruined my life.
40. It is hard to explain how much being on ice takes over your life. When I was on it, it was all I could think about, including how I could get it, when I could use it, how to get more of it. It made me desperate.
41. When I’m on drugs, I don’t care about my family or think about what I am doing is hurting them too. Whenever I have relapsed, I usually keep my distance from my family. I think this was because I did not want to worry them and knew they would probably try to get me clean.
42. I am a completely different person when I use ice. I consider myself a quiet person and I’m most comfortable with animals or my family. This is why I adopted my rescue dog Rosco, who I have not seen since I’ve been in prison for the past two years. I have never had much confidence in myself and I get self-conscious except when I am with my family. I think this is part of the reason why I used ice because it made me feel more confident.
43. I tried to hide my drug use from my family as much as I could but I think they could tell something wasn’t right with me. My mum eventually confronted me in around 2014 and told me I had to stop. I was living with her and my stepdad at the time and managed to stay clean for a while. It was at around this time that I went to stay with my biological father in New Zealand for a couple months.
44. When I came back home, I lived with my mum and stepdad again before I moved out of home. I thought I could manage living on my own. It did not take long before got back into using and dealing again.
Criminal History
45. I accept my criminal history as shown in my Check Results Report dated 27 May 2020.
46. It is hard for me to remember all of the details of my criminal history since 2010 as I was usually on drugs at the time.
47. A lot of my crimes concerned me possessing drugs, mostly ice or cannabis, which was either for my personal use or because I was selling it. The details I can remember are as follows.
48. To the best of my knowledge, my crimes for burglary in late 2008 occurred when I had smoked marijuana and then stole jewellery and a television from two different homes. I did not know the people living there.
49. With respect to my conviction for armed robbery with wounding in February 2020, I committed this crime with a friend of mine who I had met through school. We (sic) been drinking and smoking marijuana and my friends suggested we rob a change machine at a car wash he used to work at. I was unemployed at the time as my apprenticeship had just ended when the company was liquidated. We attended the car wash and held the car attendant up with knives. I wrote a letter of apology to him that my lawyer gave to the judge at my sentence. I spent six months in prison for this, which was my first time in gaol. I was release on court-ordered parole in around May 2011. I breached my parole later that year when I returned to crime and using drugs and was sent back to jail.
50. My offences in late 2015 happened after I moved out of home and was living with some mates who were using and selling drugs. At that time, I was using ice almost every day and selling drugs to feed my habit. I remember the police coming to our home in around September 2015. I was the only one home. I panicked when they came to the door with a warrant and tried to get rid of the drugs by flushing it down the toilet. The police also found drugs in my car. I was given bail but I kept using and dealing drugs. I was sent to prison just after Christmas Day in 2015. I was driving while on ice and saw the police doing and RBT up ahead of me on the road. I took off. The police later found me and arrested me.
51. I spent around two years in prison. I did a rehabilitation program called “Do It” at Arthur Gorrie prison. This went around for around a month (sic). I finished it in 2016. I was then released from prison at around Christmas time in early 2018.
52. At the time of my release, I wanted to live a different life and get back into work. I had a lot of trouble finding a job. I didn’t ask my family for help and at the time they had their own problems to deal with, including their young kids and mum and sister’s health issues. Because I wasn’t working, I had a lot of time on my hands and was bored. I started spending time with the same friends from before who were drug dealers. It was a very short time later that I was using ice again.
Visa Warning in 2010
53. When I was in prison in 2010, I got a letter from the Department saying they were thinking about cancelling my visa. I spoke about it with some other prisoners who said words to the effect of, “it’s not a big deal, everyone gets them and they never cancel their visa”. I remember thinking at the time that I as clean and thought I wouldn’t have any problems staying away from drugs in future.
54. I recall writing back to the Department and asking them not to cancel my visa. I didn’t receive a reply so I assumed this was the end of it. I walked out of prison and went back to my family. I don’t remember discussing this with them, I simply got on with my life. It wasn’t long before I got back into using ice and doing crimes again.
55. I have been shown an acknowledgement letter with my signature dated 17 March 2011. I accept this is my signature but I have no memory of signing this.
Visa Cancellation and Rehabilitation
56. When I got my visa cancellation notice in August 2018, it has been a completely different experience than what I went through in 2010. I spoke with an immigration lawyer just after I got this letter. She told me that I was facing deportation from Australia and would never be allowed back into the country. I never thought this was something that could happen to me because I have lived here for so long.
57. The last two years have been the worst in my life. This is the longest period of time I have spent locked up and away from my family. I have spoken to my family all the time, especially my mum. We talk about my deportation a lot. The worst part is I believe the stress of my deportation has affected my mum’s health. She has been going downhill over the last eighteen months and just suffered a stroke. She has only ever supported me and I have put her through a lot.
58. I have had a lot of time in prison over the last two years to think about how I got here. I have also thought about what is important to me. My family are more important to me than anything else. There is nothing for me in New Zealand. I never want to be in prison again or away from my family like this again. Because of this, I know I need to give up drugs for good. This is the only way I will have a chance of staying in Australia with my family.
59. After my visa was cancelled, I wanted to do any drug programs I could get. I spoke to prison staff about this and by persisting, I was able to get into the Substance Abuse Maintenance Intervention (SAMI) program in March 2019. This was two days a week for around two months. I also worked on a relapse prevention plan while I did this program.
60. SAMI made me more aware of why I keep going to back to drugs and how it has impacted me and made me choose the wrong decisions in my life. Because of drugs, I have no income or savings, I have spent years in jail and I am facing deportation and losing everything I care about. This is why I say it has ruined my life.
61. SAMI has also helped me to realise I am an addict. I thought I had a drug habit rather (sic) an addiction but I was in denial about how much drugs controlled me. This has been hard for me to accept. I know I will always need to be alert to any signs of relapse and that I will need help to stay off ice. Before I came to prison, I tried to kick my habit on my own. I did not even ask my family to help me. When I was released in February 2018, I thought I could control it on my own and did not need help. In the back of my mind, I knew that I would end up using again.
62. One of the reasons why I have relapsed in the past is that I have been hanging around the wrong people and kept going back to them. Like me, they keep winding up back in prison. Some of them are in prison now but I have not had any contact with them. Some of them have been deported. I have no interest in seeing these people again. They do not do anything positive for me. I know I may feel thoughts of boredom and loneliness again and may be tempted to contact these people. If this happened, I would instead contact my family, who I know are on my side and have my trust.
63. There are other people who are better for me who I can spend time with aside from my family. My friend [PO], who is an Australian citizen, used to spend time with same crowd I did and also had drug problems. He has since gotten clean and is living with his partner and children in Marsden. He’s working and has really turned his life around. He is a close friend of my brother’s and I have spoken with him on the phone several times since I have been in prison. He has said he can help me keep clear of drugs in future. [PO] (sic) has been down this road and knows the temptations. His experience has given me confidence that I can do this too.
64. I have now been clean from drugs for over two years. I am aware that a lot of people are using and “home brew” in prison. Prisoners have done this openly in front of me, including when we’re locked down to our unit and can’t just leave. I have been offered drugs before I have always said no.
65. What has helped me keep clean in prison is exercising. This has also given me confidence. Before COVID-19, I was going to the gym and training every day, usually cardio and muscle training. I never really did any sort of training like this on a regular basis. Now it is keeping me focused and healthy. I have also been doing boxing, I was to join a boxing gym when I am release so I can keep doing this.
66. I have not had any breaches or discipling in prison. I have been working the whole time. I started as a cleaner just after I came to jail and later became working as an industries worker in the woodshop. I have worked my way up to a senior worker and have been a team leader since January 2020.
Release Plans
67. I will be living with my mum and stepdad once I am release. They have told me they will not put up with any drug use. They know the signs when I have been using. My mum has also offered to come with me to drug support groups to help me. I am told there are lots of drug support groups near their house, including ATODs.
68. I have work lined up for me in the community. I will be working with my brother who owns and operates a mechanic’s shop and do an apprenticeship with him if I can. He can immediately offer me full-time work but I just want to do part-time employment so I can focus on doing drug rehabilitation. My brother has also told me he won’t put up with any drug use either. This is his business and I know he is counting on me.
69. My priority when I am out will be to continue my drug rehabilitation. I am committed to this more than I ever have before.
70. I will also be joining a gym and boxing ring as stated above. I think this will help me to stay focused and avoid drugs.
71. I will be on parole until the end of 2021. I know my parole conditions include a curfew, that I cannot change addresses without permission, and that I must attend drug rehabilitation courses. I will comply with all of these conditions. My mum and stepdad have a copy of these conditions and I know they will help me follow them.
72. If I am given another chance to stay in Australia, I promise I will not waste this. The last time I got out of prison I was in denial and thought I did not need help. I know that avoiding drug relapse is not just about avoiding drug use, it is about thinking ahead and being aware of the problems that led me back into drug use and dealing like boredom and loneliness. I am complete committed to treating my addiction and getting the help I need. With the supports I will have around me, I believe I can avoid relapsing.
Hardship in New Zealand
73. Being deported to New Zealand would be a nightmare.
74. I have lived in Australia since I was nine years old. I can barely remember my childhood in New Zealand. This is the only life I have ever really known.
75. My deportation would mean I most likely never see my mum and sister again. They can’t travel overseas due to their health issues.
76. Of all people in my family, I am closest to my mum. She’s gone through years of so much stress and worry because of my visa cancellation. I’ve put her through a lot before with my criminal offending and she’s always stuck by me. The idea I would never see her again is horrible to think about.
77. It’d be really difficult for the rest of my family to visit me. They have kids and jobs here and flying over to visit me would be very expensive.
78. I am aware I have some extended family in New Zealand, aunts and uncles, from my biological father’s side. I have had any contact with these people since I was a young kid. I do not know where they are living.
79. I have nowhere to live and I know no one there who could support me. I have no contacts or job links I could use.
80. I had a really horrible experience the last time I was in New Zealand in [redacted]. I was away from my family and my father was very violent towards me. This experience had a really negative impact on me. The thought that I could be sent back there with no hope of returning to Australian terrifies me.

Also in support of his request for the revocation of the cancellation of his visa, the Applicant provided a report dated 3 November 2020 from Professor James Freeman Consultant Psychologist Forensic – Clinical.[44] Professor Freeman conducted initial assessments on 2 August 2018, and 25 October 2018 at the Woodford Correctional Centre, and completed three follow-up assessments on 4 April 2019, 29 May 2020 and 2 July 2020. Professor Freeman recorded that his assessment was based primarily on self-report data, and that this should be borne in mind when interpreting the results.[45] Professor Freeman recorded that the Applicant expressed feelings of remorse and shame for his past conduct.[46] Professor Freeman also recorded that the Applicant was first exposed to methamphetamines when aged 19, and since that time has struggled with dependency.[47] Professor Freeman recorded no observable abnormalities, and stated that the Applicant did not appear to explicitly engage in any form of self-report bias including impression management. Rather, the Applicant openly discussed his behaviour.[48] Professor Freeman recorded that the Applicant had a “significant history of substance use which commenced with cannabis and evolved to methamphetamine addiction. The latter dependency appears to have had a tremendously deleterious effect upon his psychosocial functioning in the community, including relationships and vocational capacity”. [49] The Applicant also did not reveal any literacy difficulties, and was likely to function within the average intelligence range.[50] There was no clear evidence that the Applicant suffered any form of Personality Disorder.[51] The Applicant’s offending history suggested that he was “vulnerable to engage in impulsive behaviours with little consideration for the consequences. As such, he can engage in self-damaging behaviours and/or fail to recognise high risk situations”.[52]
[44] Exhibit G1, G Documents G2, at Pages 105-114.
[45] Exhibit G1, G Documents G2, Pages 105-114 at 113 [1].
[46] Exhibit G1, G Documents G2, Pages 105-114 at page 106 at [4].
[47] Exhibit G1, G Documents G2, Pages 105-114 at page 107 at [6.3].
[48] Exhibit G1, G Documents G2, Pages 105-114 at page 108 [8.1].
[49] Exhibit G1, G Documents G2, Pages 105-114 ibid at [8.3].
[50] Exhibit G1, G Documents G2, Pages 105-114 ibid at [8.4].
[51] Exhibit G1, G Documents G2, Pages 105-114 ibid at [8.5].
[52] Exhibit G1, G Documents G2, Pages 105-114 ibid at [8.6].
Professor Freeman made an Actuarial Risk Assessment using the Hare Psychopathy Check List (PCL-R) which he described as “a highly reliable and validated rating scale for the assessment of psychopathy in male forensic populations. It is widely considered one of the most effective predictors of recidivism, particularly scores above 20 (with scores of 30 being considered indicative of psychopathy)”. The Applicant received a total raw score of 11 which equated to a percentile rank (PR) of 7.6% compared to an average inmate score of around 23.6 and a percentile ranking of 46.3 [percent]. Professor Freeman recorded that the Applicant’s score was well below the average prisoner’s ranking, and was also well below the cut-off raw score of 30 in order to be classified as suffering from psychopathy.[53]
[53] Exhibit G1, G Documents G2, Pages 105-114 at page 109 at [9].
Professor Freeman also recorded:[54]
[DTCB] accepts a past vulnerability to experience elevated levels of boredom (and subsequently make contact with drug associates) and he has led a somewhat parasitic lifestyle (at times) to fuel his drug dependency. His offending history also suggests he can be impulsive, irresponsible and reckless (at times). Notably, he has failed on past community supervision orders by relapsing into methamphetamine dependency. Nevertheless he does not have a juvenile delinquency history, which is considered to be (part of) the foundation of an antisocial personality disorder.
[54] Exhibit G1, G Documents G2, Pages 105-114 ibid at [9.3].
Professor Freeman recorded that the Applicant did not have behavioural or affective tendencies reflective of psychopathy.[55]
[55] Exhibit G1, G Documents G2, Pages 105-114 ibid at [9.4].
Professor Freeman also recorded:[56]
No other actuarial risk assessment tools were utilised due to lack of violent offending behaviour (apart from an isolated incident in 2010). Rather, his risks primarily stem from relapse (see section 11).
[56] Exhibit G1, G Documents G2, Pages 105-114 ibid at [9.5].
Professor Freeman said the Applicant had experienced good mental and physical health, and that his cannabis and methamphetamine dependency had subsequently fuelled his offending history. This could be directly attributed to his substance dependencies and associated alignment with a pro drug support network. Professor Freeman also stated in regard to the Applicant’s substance dependencies:[57]
In regards to the former, it is noteworthy that methamphetamine usage promotes maladaptive decision-making and response inhibition and elevated risk taking propensities. Additionally cannabis use creates further deficits in decision-making. In regards to the latter, [DTCB] accepts being influenced by his past support network, which condoned/promoted drug use and he subsequently became desensitised to the serious nature his behaviour (across time).
[57] Exhibit G1, G Documents G2, Pages 105-114 at page 110 at [11.2] (citations omitted).
The professor continued:[58]
The risk of recidivism relates primarily to him avoiding relapsing into substance use, avoiding alignment with a negative peer support group and securing lifestyle stability. Encouragingly [DTCB] has a sufficient level of insight into the extent of his substance abuse, recognises the link between his substance abuse and offending, and subsequently articulates a commitment to avoid relapse. However, he will need to be vigilant of relapse for an extended period of time as methamphetamine dependency is usually chronic and requires lasting after-care e.g. treatment, support and monitoring. As a result, he should be encouraged to engage in complimentary community-based relapse prevention interventions e.g. Drug ARM, ATODS etc. Similarly, his risk of relapse is likely linked to contact with past drug associates, and thus he will need to be wary of high risk situations. Given that a sizable proportion of his offending history directly relates to substance abuse, if he can achieve ongoing abstinence (sic), his risk of recidivism may prove to be greatly reduced. In regards to the latter, he has developed a Relapse Prevention Plan and articulated a commitment to engage in maintenance based interventions to assist achieve abstinence. He has reportedly been exposed to drug use in a custodial environment, but has voluntarily chosen to continue his abstinence (which is evidence of his commitment to creating lasting change).
[58] Exhibit G1, G Documents G2, Pages 105-114 at page 110, [11.3].
Professor Freeman also pointed to the Applicant’s links to Australia, and contrasted them with his limited network in New Zealand and said that a risk of relapse for the Applicant may prove to be greatly increased if he is required to relocate to New Zealand.[59]
[59] Exhibit G1, G Documents G2, Pages 105-114 at page 110, [11.5].
The Applicant also provided a hand-written statement dated 18 October 2018[60] requesting that he participate in any drug or substance abuse programs whilst in custody, saying that he wished to get as much help as he could whilst he was in custody.
[60] Exhibit G1, G Documents G2, at Page 115
The Applicant also provided a copy of his Relapse Prevention Plan under the Substance Abuse among Young Indigenous (“SAMI”) program dated 8 May 2019.[61] The Applicant listed his high risk situations as including catching up with old friends, being bored, being at someone’s house where people were using drugs, and negative thinking. He lists risk warning signs he might perceive and new behaviours he might adopt. He listed sporadic behaviour and impulsiveness as risk factors he listed his mother, brother, sister, and girlfriend as being supports and also Drug Arm Australia. The Applicant stated his goals were to get a job, move to his own accommodation, and stay clean. His goals included buying a house, and finishing parole and starting a business. The Applicant also produced a Certificate of Attendance issued by the Queensland Government Department of Corrective Services in respect of the Substance Abuse Maintenance Intervention Program (SAMI) between 27 March 2019 and 9 May 2019.[62]
[61] Exhibit G1, G Documents G2, at Pages 116-123.
[62] Exhibit G1, G Documents, G2 at Pages 124-125.
The Applicant also produced documents from the Parole Board Queensland which disclose that he was to be released to the custody of the Australian Border Force on 16 November 2020 on terms set out in the Parole Order[63] which would remain in force until 22 December 2021 unless otherwise determined by the Board.
[63] Exhibit G1, G Documents, G2 at Pages 129-130.
Statutory Declaration of Mrs P – Mother
In support of his request, the Applicant also produced a statutory declaration[64] dated 19 June 2020, by his mother, Mrs P a New Zealand citizen, and 20 year resident of Australia. Mrs P stated that the Applicant is the youngest of her 3 children from an “extremely volatile relationship” and was 3 months old when she left his father. They moved house several times due to physical violence and breach of nonviolence orders. She said that the Applicant’s father was verbally abusive towards all the children.
[64] Exhibit G1, G Documents, G2 at Pages 142 – 147.
Mrs P said that she met her husband Mr P when the Applicant was eight years old at which time they decided to move to Australia. She said that his biggest attributes are his kind heart and trusting nature. She described him as being quiet and shy, and very self-conscious about his weight and appearance. She said that he had no relationship with his biological father, who would never call him on his birthday. She stated that the Applicant loved art and was especially good at design.
Mrs P stated that the Applicant obtained an apprenticeship in cabinetmaking after he left school, but this was cut short when the company went into receivership and he was unable to find another placement. Following a period of unemployment he worked as a forklift driver at the Rockley Markets, and it was at this time that he associated with an older group, left home, and began taking drugs, and his criminal history followed.
Extracts of Mrs P’s declaration follow:
The past ten years, [DTCB] has had periods of staying off the drugs and getting his life back together taking two steps forward and unfortunately one step backwards. When he was released from prison the last time, employment had been difficult to find but he kept trying and was doing well. He had stopped smoking cigarettes became more conscious of his fitness and healthy eating and stayed away from his former associates.
During those periods [DTCB] was living at home and got more involved with our family life helped around our home with renovations he could turn his hand to anything and wasn’t afraid of hard work. He got involved with his niece and nephew when my daughter fell ill and was a great support to sister during that time.
Unfortunately with his criminal record employment was hard to find, he would have no problem passing the interview, but criminal history checks squashed his chances on many occasions.
[DTCB] went over to New Zealand make (sic) a connection with his father with the hope he could form some sort of relationship with him and build a new life over there. [DTCB]’s father rejected him and treated him badly. [DTCB]’s eyes where (sic) opened to people he had never associated with before his father has connections with the Mongrel Mob and Nomad Chapter. His father was a heavy drinker and was an abusive bully. [DTCB] didn’t want to be a part of that live there and told his father he was returning home to Australia which resulted in a physical altercation. His father hit him and [DTCB] left and came back home to Australia.
…
[DTCB] has been off drugs for 2 years being in prison and has completed drug rehabilitation courses while in prison. We have been able to fund a private psychologist to see [DTCB] and help him to develop plans to avoid drugs. From my own observations and conversations with [DTCB] the sessions have been successful. [DTCB] has personally dealt with his demons one being that rejection of his father.
[DTCB] has been in prison a long time and through many conversations with me he has admitted he has wasted too much of his life and has shown remorse for the hurt and anger he has caused everyone around him. He is devastated of the thought of being deported to New Zealand and live in a country with no family around him. For [DTCB] to open up to me in this way has assured me that he has the desire and the confidence in his own self to change his life.
[DTCB] has a home with us here his room is set up for when he is released. I am committed to supporting with any conditions he must undertake, parole meetings, drug rehabilitation meetings and any other conditions he is required to do. Our home is a drug-free zone and we will enforce this if [DTCB] comes home to us. It’s a happy home with the grandchildren constantly visiting, family get-togethers Christmas Day, Australia Day, Anzac Day, and Easter is always celebrated at our home.
…
Since [DTCB] has been in prison, I have done a lot of research into drug addiction and have attended family support meetings to gain knowledge so I can be more helpful in understanding drug addiction and what [DTCB] has been going through with addiction and personal issues. I gained employment with an Agency that dealt with clients battling drug abuse. That experience has opened my eyes to the effects drugs can have on one’s state of mind [typographical error omitted] and the difficulties breaking of the addiction without professional help. I strongly feel with the knowledge that I have learnt and shared with the family we are better equipped to support [DTCB].
Two years in prison away from the drugs and his associates has been an enormous start and undoubtably saved his life. [DTCB] has taken the hard way to change his ways, prison is not a nice way to live your life and he has taken responsibility for his actions and is openly assured me he will never go back to his old way of life.
When [DTCB] is released, he is coming back to a family that can provide this support. [DTCB] has employment which is a major part of his journey to re-tabulating back to be a productive human being, this employment is with his brother [WP] who has started his own business as a delivery company, [DTCB] has a position with [WP] as his offsider in the truck. [DTCB] knows this and is looking forward to this opportunity of employment and working with his brother and assisting with building his business, [WP] is also looking forward to having his brother on board and has a long-term plan for him to obtain his truck license and become more involved in the venture. [WP] will provide more information in his declaration for you. [DTCB] has done bad things when he has been on drugs. It is appalling, and I don’t condone his actions nor am I taking his criminal activity lightly. But deportation is the ultimate punishment for [DTCB] and for us as well, especially me his mother. [DTCB] is fully aware what his deportation is going to do to us as a family. Dick and I aren’t young anymore our years are numbered on this earth, the reality of us all not being able to be together is a cruel reality, [DTCB] is feeling the harshness of this reality and is desperately wanting to stay in Australia and turn his life around for everyone and himself. [DTCB] has missed two years of seeing his nieces and nephews growing up. Nephew 2 is on his second season without his Uncle watching him play football.
…
[DTCB] is a valued member of our family and his current situation of being deported is affecting our lives especially mine. I have been diagnosed with emphysema, flying to New Zealand to visit is not going to be an option for me and the thought of not seeing [DTCB] again is unthinkable and is adding to a great deal of stress to my day-to-day life and battling my own health condition, I have been suffering from anxiety and depression due to the stress of losing my son to deportation.
[DTCB] has been told of my CPOD illness and is extremely shaken at the realization (sic) that this could happen should he be deported and never allowed to return. [DTCB] has no family in New Zealand to support him or to care about him.
[DTCB] will be isolated from his family in New Zealand this is a concern regarding his mental health and the struggle he will have to rebuild his life in a country he doesn’t know with no family around him.
I have concerns regarding [DTCB]’s father finding out he is in New Zealand. His father is well connected to many people these people are not the type of characters that are law-abiding. [DTCB]’s father comes from a large family, mostly mob members or connected with mob members. His family is scattered around the country and [DTCB] does not have a common surname.
[DTCB] is going to be vulnerable over there, not knowing anyone trying to find work in a time where the COVID-19 has affected the economy its (sic) going to be difficult in the best of times to restart his life in normal conditions let alone at this time of economic hardship. [DTCB] must adjust to a new country and adjust to life after prison, I’m not confidant (sic) that he will be mentally strong enough to be able to do this without the support from genuine people who know him and understand what he’s been though (sic) battling drug abuse and people of his best interests at heart.
I am pleading to the department to reconsider cancelling his deportation order to enable all our family to stay together in our home of Australia and rebuild our family.
Statutory Declaration of Mr P
The Applicant also provided a statutory declaration[65] dated 17 June 2020 by Mr P an Australian citizen, who said that the Applicant had been his stepson since he was eight years old. Mr P said that the Applicant went through his school years without any issues, and participated in a football club and an athletic club, and won medals for his athletic ability. The Applicant went into a cabinetmaking apprenticeship with a company which failed financially, following which the Applicant was unable to find similar employment. Mr P said that his experiences bringing up the Applicant were not difficult, and that the Applicant had respect for himself and his mother, and continue to do so. Mr P claimed the Applicant’s criminal record and his battles with drug abuse, which started at a fairly young age, not long after he obtained work and left home.
[65] Exhibit G1, G Documents, G2 at Pages 131-133.
Mr P said that he and the Applicant’s mother were oblivious to the extent of his drug use initially. At the times that the Applicant was released from incarceration, he made efforts to stay off drugs for long periods of time. On those occasions, he made himself useful by helping his stepfather with repairs and renovations around the home. Indeed Mr P observed:
I can honestly say he was a god (sic) send to me on many occasions doing jobs that I was incapable of doing without having to hire someone.
The Applicant also assisted his sister SP through a serious and ongoing medical episode in her life when it took years, and many admissions to hospital to diagnose her with meningitis.
Mr P also stated:
I know that [DTCB]’s disgraceful criminal record sits in front of you and to any person who reads it will come to the conclusion that this person in front of you is deemed not worthy of consideration to stay in Australia (sic). I am writing this declaration to tell you the other side of [DTCB].
The boy I bought up as my son and will continue to be my son, the goodness in [DTCB] and the types of qualities he has as a human being is worthy to fight for.
[DTCB] is not one for conflict or expressing his emotions. He has kind heart which I have witnessed many times over the years, I have often referred to him as our gentle giant. [DTCB] is quietly spoken he would rarely raise his voice or offer his opinion and he would never ask for help even when he came out of prison he would always tell me he was ok, and for a while he was doing okay, he always kept his disappointments and struggles to himself and didn’t want me or his mother to know he wasn’t copping.
Thankfully this is changed [DTCB] has opened up since he has been in prison this time and conversations I have had with [DTCB] while he’s been in prison has (sic) further reiterated to me his desire to change his life and go further with whatever it takes in his rehabilitation from prison. It deeply depresses me that he is facing deportation to New Zealand, a country that is not connected to and is without family.
I am more than happy for [DTCB] to live with us his bedroom is ready for him to move in two with the space and comforts he needs to feel at home, and I can honestly say I look forward to him coming home. I am prepared to offer any assistance that [DTCB] requires from taking him to any appointments he has and to join in with him on every level of his rehabilitation back to society. I have made it clear to [DTCB] that he is an important member of our family and I will do whatever it takes to be here for him to help guide him back to a better way of life.
I am in my seventies and his mother is 60 battling emphysema our family is important to us. The past 2 years with [DTCB] being incarcerated has made a deep impact on our family as it has to [DTCB] as well, but to have him deported to another country is devastating.
Statutory Declaration of RG

The Tribunal accordingly finds that this Primary Consideration C is to be given heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not rely on this consideration or believe it to be relevant.[177] This consideration is not relevant to determination of this application.
[177] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, [64].
(b) Strength, nature and duration of ties
The Tribunal accepts that this Applicant has lived here for all but approximately nine years of his life. The Tribunal accepts that all of the Applicant’s friends and close family reside in Australia, and have an indefinite right to remain in Australia. He is not close to anyone in New Zealand, and is in fear of his father who lives there. His mother and sister are both prevented by illness from travel to New Zealand by plane. His mother also has bad memories of her treatment in New Zealand at the hands of the Applicant’s father. The Tribunal accepts that if the Applicant is to be deported, there will be significant emotional hardship for both himself, and his entirely undeserving mother, and sister, both of whom have enough to cope with. There will be hardships for others also, and the Applicant will be deprived of what is for him, an unprecedented and generous employment opportunity afforded by his brother and his brother’s business partner.
It is also clear that the Applicant did not commence offending until he was 17 years of age, and this therefore does not lessen the weight, which should be given to this Other Consideration in accordance with paragraph 14.2 (1)(a)(i) of Direction 79. The Applicant has spent a couple of years contributing positively to the Australian community, and the Tribunal does give this some weight in his favour paragraph 14.2 (1)(a)(ii) of Direction 79.
In having regard for paragraph 14.2 of the Direction, the Tribunal has had regard for the principles at paragraph 6.3 of the Direction, and in particular at subparagraph (5) where it is stated “However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.” The Applicant has now resided in Australia since the age of 9 years, a period of nearly 21 years. He is entitled to a higher level of tolerance of his criminal and other serious conduct.
The Applicant was first warned of the possibility of the cancellation of his visa on character grounds over ten years ago on 16 February 2011. He made a submission, which was accepted, and a decision not to cancel his visa was made on 15 March 2011. No further action was taken until 2018, by which time, he had committed many more and serious offences. The delay between the initial warning letter and a decision to cancel the Applicant’s visa in August 2018 can be seen both as a manifestation of the higher level of tolerance to which he was entitled, and also, its exhaustion.
The Tribunal gives this consideration slight weight in favour of revocation of the decision to cancel his visa.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that the cancellation of the Applicant’s visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal therefore finds that this consideration is not relevant to determination of this application, and give it neutral weight.
(d) Impact on victims
There is no specific evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and the Tribunal therefore makes no finding in relation to this consideration, and gives it neutral weight.
(e) Extent of impediments if removed
In considering the extent of impediments the Applicant may face in New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), the Tribunal has taken into account that the Applicant is presently 29 years of age, and there is no evidence before the Tribunal that he suffers any health condition that would place any undue burden upon him or otherwise impede his re-establishment in New Zealand. It has not been contended that he will face any substantial language or cultural barriers.
The Tribunal accepts that all of the Applicant’s friends and close relatives reside in Australia, and that if returned to New Zealand, he will for practical purposes, be on his own, and this will provide him with some challenges. Not least among these is that he will be permanently isolated from his mother and sister, both of whom suffer ailments which would prevent them from travelling by air to New Zealand to visit him. For a range of reasons there would also be difficulties in his other loved ones visiting him.
The Tribunal notes with concern the Applicant’s troubled history with his biological father, who has a strong history of violence – including against the Applicant - and breach of domestic violence orders. He is a member of notorious gangs, and is no stranger to prison life. The Tribunal accepts that if the Applicant’s father becomes aware of his whereabouts, this may place the Applicant in some physical danger. A previous attempt by the Applicant to re-establish himself in New Zealand failed as a consequence of violence from his father.
On the other hand, the Tribunal also notes that the Applicant has stated that his poor choice of associates has contributed to his past wrongdoings. In this regard, it may well be doing him a favour to remove him from the sphere of influence of those people, and give him an enhanced opportunity to turn his life around unimpeded by bad influences.
The Tribunal also notes that New Zealand is a developed country which has very good health and social welfare systems, and the Applicant would be able to receive any counselling or other treatment which he might have recommended, as well as medication there which would be comparable to what he might expect to receive in Australia.
Overall the Tribunal views this consideration as being of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weighing heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: slight weight in favour of revocation;
·impact on Australian business interests: neutral;
·impact on victims: neutral; and
·extent of impediments if removed: slight weight in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration A weighs extremely heavily in favour of non-revocation;
·Primary Consideration B weighs in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined with Primary Consideration B, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal 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 321 (three hundred and twenty one) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

................................[SGD]........................................
Associate
Dated: 12 April 2021

Date(s) of hearing: 24 and 25 March 2021

Date final submissions received: 24 March 2021

Solicitors for the Applicant: Ms C White, Fisher Dore Solicitors

Solicitors for the Respondent: Mr I Duldig, Clayton Utz
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G25 paged 1 to 447)

R

-

8 FEBRUARY 2020

A1

Applicant’s Statement of Facts, Issues and Contentions

A

25 FEBRUARY 2021

26 FEBRUARY 2021

A2

Applicant’s Reply

A

19 MARCH 2021

19 MARCH 2021

A3

Applicant’s additional evidence

A

-

19 MARCH 2021

R1

Respondent’s Statement of Facts, Issues and Contentions

R

5 MARCH 2021

9 MARCH 2021

R2

Respondent’s Tender Bundle

R

-

9 MARCH 2021

R3

Applicant’s Driving Record

R

-

24 MARCH 2021

[2021] AATA 833

12 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	24 and 25 March 2021
Date final submissions received:	24 March 2021
Solicitors for the Applicant:	Ms C White, Fisher Dore Solicitors
Solicitors for the Respondent:	Mr I Duldig, Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G25 paged 1 to 447)	R	-	8 FEBRUARY 2020
A1	Applicant’s Statement of Facts, Issues and Contentions	A	25 FEBRUARY 2021	26 FEBRUARY 2021
A2	Applicant’s Reply	A	19 MARCH 2021	19 MARCH 2021
A3	Applicant’s additional evidence	A	-	19 MARCH 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	5 MARCH 2021	9 MARCH 2021
R2	Respondent’s Tender Bundle	R	-	9 MARCH 2021
R3	Applicant’s Driving Record	R	-	24 MARCH 2021