Durham and Minister for Home Affairs (Migration)

[2019] AATA 645

Durham and Minister for Home Affairs (Migration) [2019] AATA 645 (3 April 2019)

Division:GENERAL DIVISION

File Number:2019/0229           

Re:Vaughan Durham  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:3 April 2019

Place:Brisbane

The decision under review is affirmed.

........................[SGD]................................................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – NON-RECOVATION OF MANDATORY CANCELLATION OF VISA ON CHARACTER GROUNDS – expedited matter – Class TY Subclass 444 Special Category (Temporary) visa – where applicant does not pass the character test – more than 12 months’ imprisonment – whether discretion to revoke mandatory cancellation should be exercised – considerations in Direction 79 – decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311

Allan and Minister for Immigration and Border Protection [2016] AATA 1077

Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337

Marzano v Minister for Immigration & 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

Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

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

Secondary Materials

Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member Theodore Tavoularis

3 April 2019

BACKGROUND

1. This matter relates to an application for review filed by Vaughan Durham (“the Applicant”) on 12 January 2019. The decision under review is the decision of a delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) dated 4 January 2019. The delegate’s decision pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) was to not revoke the mandatory cancellation[1] of the Applicant’s visa. 

   [1] Mandatory visa cancellation by virtue of s 501(3A) of the Act.

2. The Tribunal has jurisdiction to review the decision of the delegate pursuant to s 500(1)(ba) of the Act.

   BACKGROUND

3. The Applicant is a 61 year old citizen of New Zealand. Movement records indicate that he first arrived in Australia on 22 April 1982[2] and has travelled outside Australia, predominantly to New Zealand, on something in the order of 37 occasions.[3] Incoming passenger cards indicate he has travelled to Indonesia on 12 occasions and to Thailand on five occasions.[4]

   [2] There is a slight discrepancy between the movement records and the Applicant’s written evidence, where he notes he first arrived in Australia on 27 October 1979 – see Exhibit 3, Applicant’s Statutory Declaration declared on 28 February 2019, page 1, paragraph [11] and Exhibit 5, s 501 G Documents, Movement Details, G20, pages 163 – 167. In the absence of any other evidence before me besides the movement records, I will proceed in this decision on the basis that the Applicant arrived in Australia on 22 April 1982.

   [3] Exhibit 5, s 501 G Documents, Movement Details, G20, pages 163 – 167.

   [4] Ibid, G18, pages 134 – 160.

4. The visa cancelled by the Minister’s delegate was a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”). This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa on 22 June 2017 and the refusal of the Minister’s delegate to revoke that cancellation by virtue of the abovementioned decision dated 4 January 2019.

5. The Applicant has an extensive criminal history in Australia running from 27 July 1990 until 9 July 2015.[5] He also has a criminal history in New Zealand that runs from 5 April 1973 until 21 July 1977.[6]

   [5] Ibid, G5, National Police Certificate (Australia), pages 27 – 29.

   [6] Ibid, G17, New Zealand Police (In Confidence), page 133.

6. On 22 June 2017, a delegate of the Minister initially notified the Applicant that his visa had been cancelled pursuant to s 501(3A) of the Act. The cancellation occurred on the basis of the Applicant having a “substantial criminal record” for the purposes of the Act as (1) he had been sentenced to a term of imprisonment of more than 12 months; (2) was serving a sentence of imprisonment on a full-time basis in a custodial institution and (3) for an offence against a law of the Commonwealth, a State or Territory.[7]

   [7] sub-sections 501(6)(a) and 501(7)(c) of the Act.

7. On 25 July 2017, the Applicant submitted a request for revocation of the cancellation decision. As mentioned earlier, on 4 January 2019, the Minister’s delegate, pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation.

8. There followed the filing of the present application for review in this Tribunal on 13 January 2019.

   ISSUES

9. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   (4) The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

10. There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[8]

    …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…[9]

    [8] [2018] FCAFC 151.

    [9] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

11. There are therefore two issues presently before the Tribunal:

    (a)Whether the Applicant passes the character test; and

    (b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

12. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[10] I will address each of these grounds in turn.

    [10] Ibid.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

13. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which 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”.

14. The Applicant, helpfully, concedes that he does not pass the character test as he has a substantial criminal record.[11] This concession was appropriately made: on 22 May 2015, the Applicant was sentenced to an aggregate custodial period of five years and six months’ imprisonment for importing/exporting a marketable quantity of border control drugs or plants (heroin).[12] Although this sentence contained certain stipulations about release on parole,[13] what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[14]

    [11] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [10].

    [12] Exhibit 5, s501 G Documents, G5, page 27.

    [13] Ibid, G7, page 69.

    [14] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.

15. Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.

    IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?

16. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 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”) applies[15]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    …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. [16]

    [15] 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. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.

    [16] The Direction, sub-paragraph [7(1)(b)].

17. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:

    (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.

18. Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.

19. 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.

20. I note and emphasise 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:[17]

    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.[18]

    [17] [2018] FCA 594.

    [18] Ibid at [23].

21. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:

    (i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (ii)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;

    (iii)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;

    (iv)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;

    (v)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;

    (vi)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; and

    (vii)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 for determining whether to exercise the discretion.

22. I will now turn to addressing these considerations.

    Primary Consideration A – Protection of the Australian Community

23. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.  This paragraph stipulates that remaining in Australia is a privilege that his country confers on non-citizens.  In return,  this paragraph stipulates an expectation that those non-citizens 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.

24. In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph points out to decision-makers that mandatory cancellation without notice of certain non-citizen prisoners is consistent with the abovementioned principle that (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.

25. In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to  give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

26. In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s extensive offending can be readily gleaned from two principal documents contained in the material.  His extensive criminal history in Australia is contained in his National Police Certificate.[19]  His offending in New Zealand appears in a similar record relating to that country.[20] The totality of the offending history can be summarized as follows:

    The Australian offending history

    [19] Exhibit 5, s 501 G Documents, G5, pages 27 – 29.

    [20] Ibid, G17, page 133.

Court	Court Date	Offence	Court Result
Cairns Magistrates Court	27 July 1990	Possession dangerous drug. Possession pipe used in connection with smoking dangerous drug.	Fined $750 Fined $250
Cairns District Court	17 February 1994	Wilfully did an indecent act with intent to offend (2 charges between 1/1 & 31/12/88). Indecent dealing with a child under the age of 14 years (3 charges) between 1/1 & 31/12/88 and between 1/1 & 31/12/89. Permit himself to be indecently dealt with by a child under the age of 12 years with circumstances of aggravation (4 charges between 1/2 & 31/12/90 and between 1/1 & 31/12/91). Indecent assault (between 1/2 and 31/12/91). Indecent dealing with a child under the age of 12 years with circumstances of aggravation (2 charges between 1/2 and 31/12/91).	For each of these offences, the Applicant received: -    sentences ranging from 6 months to 2 years; -    with a recommendation     for consideration for parole after serving 12 months; -    ordered to undertake a psychiatric assessment in respect of any possible compulsive sexual deviation & any necessary counselling or treatment; -    conviction recorded.
Cairns Magistrates Court	12 November 1999	Using obscene language in a public place.	No conviction recorded, convicted & fined $60.
Kalgoorlie Court of Petty Sessions	23 July 2002	Stealing Stealing (motor vehicle) Possess driver’s licence calculated to deceive. Possess prohibited drug. Bring stolen goods into Western Australia Drugs prohibited supply.	12 month intensive supervision order (adult). 12 month intensive supervision order (adult). No punishment (Court noted that the Applicant held a Queensland Driver Licence). 12 months intensive supervision order (adult). 12 months intensive supervision order (adult). 12 months intensive supervision order (adult).
Perth Court of Petty Sessions	19 November 2003	Unlicensed vehicle.	Fined: $100
Perth District Court of Western Australia	22 May 2015	Import/export marketable quantity of border controlled drugs or plants.	Convicted.  Sentenced to 5 years & 6 months imprisonment back-dated to 21.06.2015.  Non-parole period of 3 years. (Heroin).
Perth Magistrates Court	9 July 2015	Possess a prohibited drug (heroin). Possess a prohibited drug (cannabis).	Fined:  $500 Fined:  $500

1. The New Zealand offending history

Court	Court Date	Offence	Court Result
Christchurch Youth Court	5 April 1973	Getting into motor car.	Convicted and sentenced: supervision by Community  Corrections for 1 year commencing 5 April 1973; disqualified from driving for 1 year from 5 April 1973.
Christchurch District Court	16 June 1976	Receiving.	Convicted and sentenced: Probation for a period of 6 months commencing 16 June 1976; 1 year/Additional Information; 150 hrs community work.
Christchurch District Court	11 November 1976	Burglary.	Convicted and sentenced: Non-residential periodic detention – 11/11/1976:  4 months.
Christchurch District Court	21 July 1977	Receiving (2 counts).	Convicted and sentenced: Non-residential periodic detention – 21/07/1977:  4 months/ Additional Information – on each count.

The Nature and Seriousness of the Applicant’s Conduct to Date

1. In the hearing before me, it was propounded on behalf of the Applicant that his offending “… has been mainly relating to driving and drug related offences at the lower end of the scale”.[21]  In terms of the children’s offences for which he was incarcerated in 1994, it was contended that “He has always stated that there was no sexual intent. He is most regretful for this action and, has shown the insight to accept that this may have cause [sic] significant harm to the child.”[22] In terms of an ameliorative submission about the child- based offences, it was contended that “It is, however, noteworthy that he voluntarily surrendered himself into the Police and pleaded guilty at the first possible occasion to the charges.”[23] Further, that the offending was due to (at the time) the Applicant’s unresolved addiction to heroin and that his offending in relation to the child was in some significant measure due to that addiction because the Applicant “… has been a slave for a large part of his life to that drug”.[24] The additional ameliorative contention in relation to the child-based offences was that they “… occurred some 29 years ago and no other like offences have been committed by the Applicant since.”[25]

   [21] Exhibit 1, Applicant’s SFIC, page 3, paragraph [15].

   [22] Ibid.

   [23] Ibid.

   [24] Ibid, paragraph [17].

   [25] Ibid, paragraph [18].

1. In terms of the nature and seriousness of the totality of the Applicant’s offending, it was contended on behalf of the Applicant that “… it is not denied that the offences were serious in nature (a) and against a child (b)”.[26]

   [26] Ibid, page 4, paragraph [19].

2. The Respondent’s contention is that the totality of the Applicant’s offending “… should be viewed as very serious”.[27]

   [27] Exhibit 4, Respondent’s SFIC, page 10, paragraph [40].

3. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

   a)    The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

   b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

   c)    ….;

   d)    Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

   e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

   f)     The cumulative effect of repeated offending;

   g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

   h)    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;

   i)   …..”.

4. Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There can surely be no argument that any objective review of the factual circumstances surrounding the Applicant’s child-based offences confirms a finding that those offences were clearly (1) of a sexual nature and (2) very serious. The offences relate to a child “under the age of 12 years” and “a child under the age of 14 years”. This offending did not arise from casual happenstance. The Applicant knew exactly what he was doing and that the situations in which he found himself with the victim gave him an almost perfect opportunity to do what he did. He found himself in a position of trust and was found sadly wanting in that regard. The circumstances of the offending are explicit, deliberate and derived to give the Applicant pleasure at the expense of the moral debasement of the victim.

5. The offending is both appalling and very serious. Neither of those aspects are ameliorated by the passage of time and to find otherwise would be to act contrary to the best interests of the victim. Having regard to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the clearly (and appallingly) sexual circumstances of the Applicant’s offending relating to children must be viewed very seriously.

6. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are to be viewed very seriously, regardless of the sentence imposed. The Applicant’s child-based offences involved a multiplicity of sexual offences against a child in his care across a number of offending episodes lasting for many months. There are no available sentencing remarks in the material and, were they available, I am certain would have done no favours for the Applicant. It could be argued that the absence of those sentencing remarks, to some extent, means that the perspective taken by the sentencing judicial officer in imposing the sentences is not known for present purposes. Be that as it may, this offending, committed as it was against children, must be viewed very seriously – as required by this sub-paragraph (b) – regardless of the sentences imposed.

7. Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant, with specific reference to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction. Even a cursory review of the Applicant’s history demonstrates that he has an offending history in New Zealand that runs from April 1973 until July 1977. His initial offending in that country (in 1973 and 1976) was punished by non-custodial sentences in the form of  probation, a set amount of hours of community work, orders for supervision by Community Corrections and a 12 month disqualification from driving. However, the nature of his offending (even in New Zealand) graduated from its 1973 – 1976 levels into more significant offending involving burglary (in 1976) and two counts of receiving (in 1977). This latter (ie 1976 and 1977) offending was punished by respective terms of “non-residential periodic detention,” the first imposed in November 1976 and the second in July 1977. This increase in severity of sentences imposed upon the Applicant in New Zealand is indicative of the serous nature of his offending in that country.

8. In Australia, his offending has had a similar trajectory. Here, sentencing judicial officers initially gave him the benefit of fine-based punishments for the possession of pipe used in connection with smoking dangerous drug offences in July 1990. A very significant spike in the seriousness of the Applicant’s offending occurred when he was sentenced in February 1994 for his child-based offences. This was indeed very serious offending involving:

   -two counts of Wilfully did an indecent act with intent to offend;

   -three counts of Indecent dealing with a child under the age of 14 years;

   -four counts of Permit himself to be indecently dealt with by a child under the age of 12 years with circumstances of aggravation;

   -two counts of Indecent dealing with a child under the age of 12 years with circumstances of aggravation; and

   -indecent assault.

9. For this offending, the Applicant received custodial sentences ranging from 6 months to 2 years.

10. This upward trend in the severity of the sentences imposed upon the Applicant continued into May 2015 when he was found guilty of one count of importing a marketable quantity of a border controlled drug, namely heroin, following a five-day trial by jury before Her Honour Braddock DCJ (Western Australia). This offending was punished by a custodial head sentence of five and a half years’ imprisonment. It cannot be denied that this sentence represents an exponential increase above that imposed on the Applicant for the child-based offending. Indeed, the head sentence for the drug-importation conviction is more than twice that imposed for the child-based offences.

11. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s) committed by an applicant. As mentioned earlier, during the early phases of his offending both here and in New Zealand, the Applicant rightly received the benefit of non-custodial penalties in the form of community based orders, orders for supervision, disqualification of driving privileges and fines. The severity of sentences in New Zealand increased commensurate with the increase in the seriousness of his offending in that country. Likewise in Australia, his offending has seen two similar “graduations” in its severity if one has regard to the sentences imposed.

12. In July 1990, he received two fine-based penalties for drug-related offending. This did nothing to deter or prevent the Applicant, less than four years later, committing the very serious offences relating to children. That offending was punished by a two year head custodial term. There followed in 1999 and 2002, respectively, some further offending that was punished by either fines or 12 month intensive supervision orders. Again, the Applicant learnt nothing by way of deterrence or respect for lawful authority and proceeded to commit the very serious offence of importing a marketable quantity of heroin out of Thailand and into this country. The five and a half year head custodial term imposed for that offending (relative to the two year head term for the child-based offending) is, in and of itself, demonstrative of the seriousness of the Applicant’s offending.

13. I am thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.

14. Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed in relation to it. 

15. The Applicant has committed something in the order of 25 offences in Australia since he was first dealt with by judicial authority in July 1990. He committed five offences in New Zealand between 1973 and 1977, first coming before lawful authority in that country in April 1973. There is an underlying trend in the seriousness of the Applicant’s offending.  This is readily apparent in his New Zealand offending. It commences with a rather innocuous offence of “getting into motor car” in April 1973 but, within three years, graduates to the significantly more serious offending comprising of three offences of receiving and one count of burglary. The “motor car” offence might be said to arise from carelessness in the Applicant’s use of a motor vehicle. But the same cannot be said of the remainder of his offending in New Zealand. That offending was disrespectful of the property rights of others and disrespectful of the lawful authority governing people’s property in New Zealand.

16. The offending in Australia can be similarly described. Its primary difference compared to the New Zealand offending is that there are two “spikes” of seriousness instead of just one. Here, the Applicant was punished by way of two fines for drug-relates offences in 1990. There followed the first “spike” into very serious offending when he came before the Cairns District Court in February 1994 to receive a two year custodial head term for the child-based offending. This was followed by a relative lull in serious offending between 1999 and 2003. 1999 saw a conviction recorded for the vagrancy-type offence of using obscene language in a public place. 2002 saw the Applicant punished for (1) bringing stolen goods into Western Australia; (2) the prohibited supply of unlawful drugs and (3) two counts of stealing; one count of possessing a prohibited drug and one count of possessing a driver licence calculated to deceive. All of this 2002 offending was punished by respective 12 month intensive supervision orders. 2003 saw the Applicant punished for operating an unlicensed vehicle. This offending was punished by fine of $100.

17. The second “spike” in the seriousness of his offending in this country occurred with his conviction for “import/export of border control drugs or plants (heroin)” following a five day trial before judge and jury in May 2015. For this offending, the Applicant received a head custodial term of five and a half years. Despite an appeal to the Western Australian Court of Appeal, the learned appeal judges did not disturb the conviction imposed by the learned Braddock DCJ at first instance.

18. Thus, the Applicant’s offending, both in Australia and in New Zealand does have an undeniable theme of an escalating level of seriousness through its evolution. For present purposes, my assessment of this Applicant’s offending is that (1) it has been relatively frequent and (2) it is escalating in seriousness.  

19. As mentioned earlier, the Applicant arrived in this country in April 1982. He has been in this country for approximately 37 years. Giving him the benefit of the time he has spent in criminal custody and/or immigration detention, during his time here, he has been dealt with by lawful authority on no less than eight occasions. This equates to a sentencing episode every four and a half years during his time here. 

20. Viewed another way, he has been in this country for approximately 37 years and has committed something in the order of 25 offences since 1982. Dividing the number of years he has spent here (37) with the number of offences he has committed (25) means that he has committed one and a half offences for each and every year of his time in this country.   If one discounts from his time in this country the amount of time he has been out of the community as a result of finding himself in criminal custody and/or immigration detention, these ratios are even more sobering.

21. In terms of making a finding about any trend of increasing seriousness in the Applicant’s offending, one need look no further than two things. First, the Applicant’s history of offending, both in Australia and in New Zealand, where its escalation of seriousness in terms of the severity of the actual offences committed and the resulting sentences is self-evident. Second, the comments of the learned sentencing Judge (Her Honour, Braddock DCJ) who, in sentencing the Applicant in May 2015, noted:

    “Nevertheless, the crime of which you have been convicted relates to a large quantity of a drug which I’ve already indicated is a scourge and can have a great damaging effect on our lives and our community. I am obliged to impose a punishment that is adequate and of appropriate severity. Your personal circumstances are therefore of lesser significance than they might be in relation to other crimes of lesser severity.

    The quantity is a relevant matter. The fact that it was imported in this way is also a relevant matter. It is the duty of the authorities to attempt, so far as possible, to keep drugs of this kind from entering Australia, for the reasons that I’ve indicated. 

    I do not consider the fact that you were tricked initially into using heroin to be a mitigatory factor in this regard.  Neither is your addiction of yourself a mitigatory factor….”.[28]

    [28] Exhibit 5, s 501 G Documents, G7, pages 67 – 68.

22. Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the relative frequency of the Applicant’s offending and its increasing severity is such as to render his offending as very serious.

23. Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant’s offending, both in New Zealand and Australia, is broad in its scope. The offending involves (1) a failure to respect the property rights of others; (2) an irresponsible approach to either the operation of a motor vehicle and/or the holding of driving privileges relating to a motor vehicle, and (3) very significant offending involving the import/export of a marketable quantity of a border controlled drug. 

24. Although not directly relevant for present purposes, one cannot help but note that the Applicant’s offending in relation to heroin, had it been detected and actioned in Thailand (while he was there) would most likely have been a capital offence in that country or, at the very least, punished by a significantly longer custodial term than that imposed by Her Honour Braddock DCJ at first instance and not disturbed by the Western Australian Court of Appeal.

25. His offending demonstrates a lack of capacity to distinguish right from wrong. It is not respectful of the personal and property rights of others. It is not respectful of the lawful authority governing the Australian community into which the Applicant seeks re-admission.

26. The cumulative effect of the Applicant’s offending has culminated in him being removed from the mainstream community either as a result of criminal custody or immigration detention. His offending has culminated in him being a genuine threat to other people in the community. The harmful effects of the Applicant’s offending perpetrated on the child victim of that offending culminating in his sentencing in 1994 for those offences is self-evident. His offending in relation to interference with the property rights of others (stealing, bringing stolen goods into Western Australia) has caused other people to suffer a given measure of material loss and harm. His use of an unlicensed vehicle and his transgressions relating to the holding of a driver licence place other road users at immediate risk of harm.

27. Likewise, it is difficult to accept the Applicant’s evidence at the hearing that his prior offending can largely all be attributed to his (apparently) previously unresolved addiction to heroin.  As noted by Her Honour Braddock DCJ when sentencing the Applicant in May 2015, “…..your addiction of itself is [not] a mitigatory factor.”[29] I also have difficulty in accepting the Applicant’s evidence at the hearing that the 325 grams of heroin (218 grams of which was tested to be pure heroin) he sought to illegally import from Thailand was of that sum because it was not possible for him to buy it in smaller proportions. The learned Braddock DCJ accepted that “… it is probably much more likely that heroin is cheaper to purchase in bulk in Thailand.”[30]  This finding is different to the Applicant’s evidence that he could not buy the substance in smaller proportions. The likely scenario is that buying in bulk in Thailand was probably cheaper than buying an equivalent number of small proportions giving the same quantity.

    [29] Ibid, G7, page 67.

    [30] Ibid, G7, page 64.

28. As also noted by Her Honour Braddock DCJ, it [the heroin], “…. would, more likely than not, be principally for your own use but I accept that you would have, had occasion presented itself, sold or exchanged or supplied some of the drug to others”.[31]

    [My underlining].

    [31] Ibid.

29. The application of this sub-paragraph (f) to the present factual matrix thus gives rise to the finding that the cumulative effect of the Applicant’s repeated offending, is such as to render it very serious.

30. Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction involves an examination of whether the non-citizen has provided false or misleading information to the Department (of the Respondent), including by not disclosing prior criminal offending. The material[32] before the Tribunal discloses 27 incoming passenger cards completed by the Applicant during the period 19 August 2006 until 24 April 2012.  Each of those passenger cards contains this question: “If you are NOT an Australian citizen: Do you have any criminal conviction/s?”  Next to this question there are two options for the declarant to give an answer, they being “Yes” or “No”.  On each and every one of those passenger cards, the Applicant has ticked the “No” box.

    [32] Ibid, G18, pages 134 – 160.

31. The Applicant had answered “No” on each of these passenger cards (1) in full knowledge that he is not an Australian citizen; (2) when he knew of his New Zealand offending committed between 1973 and 1977; (3) when he knew of his very serious child-based offending in this country for which he was sentenced in 1994 and (4) when he knew of the other four pre-2006 instances where he found himself before lawful authority in Australia (July 1990, November 1999, July 2002 and November 2003). 

32. The Applicant, in cross-examination, accepted that the offences detailed in his Australian National Police Certificate are “…crimes that I have committed…”. He sought to ameliorate this concerning difficulty with his evidence by saying that:

    “On these incoming passenger cards, I initially put ‘Yes’ for criminal convictions. But I thought the question related to any offences I had been charged with while overseas and I do not have any convictions overseas. So I put ‘No’ as the answer...”

1. He added that he provided this “No” answer because “I wanted to avoid that drama again, that’s why I put ‘No’ as an answer”.  I have grave difficulty in accepting this evidence.  The Applicant is both proficient and literate in English. To answer “No” on at least 27 separate occasions to the subject question is difficult to comprehend and, accordingly, renders his evidence as less than credible. As mentioned earlier, he must have been well aware of his pre-2006 sentencing episodes and deliberately chose to avoid disclosing that offending to the authorities. At the hearing, the Applicant spoke of being in a “cloud of addiction” but that evidence is also to be rejected. On one view, one could find (which I do not) that he made an inadvertent mistake and, somehow, misconstrued the same question 27 times. On another and perhaps more cynical view (and upon which I do not necessarily base my finding about this sub-paragraph (g)), the Applicant very well knew what the question was asking and did not want to draw attention to himself by answering “Yes” because it may have, in turn, drawn attention to other questionable activity in which he was involved at that time.

2. For present purposes, I will base my finding about the weight allocatable to this sub-paragraph (g) on the basis that (1) the Applicant knew of his pre-2006 offending, both here and in New Zealand, and (2) deliberately failed to answer the question on the incoming passenger card truthfully (on 27 occasions) because (according to his evidence) “I wanted to avoid that drama again…. that’s why I put ‘No’ as an answer”. Accordingly, I find that the Applicant did deliberately mislead the Minister’s Department by answering “No” but I make no consequential finding as to any further or ultimate purpose behind him doing so.

3. Thus, I am of the view that this sub-paragraph (g) of paragraph 13.1.1(1) of the Direction militates in favour of a finding that the Applicant’s 27 responses of “No”  in the relevant incoming passenger cards is conduct that points to the very serious nature of his offending.

4. Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction points a decision-maker to a consideration of 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. On or about 18 January 2013, a delegate the Respondent forwarded (by registered mail) to the Applicant’s then address at Port Hedland, Western Australia, a certain Notice relating to a decision not to cancel his visa under s501 of the Act. That Notice reads as follows:

   “REGISTERED MAIL
   …..
   Dear Mr DURHAM
   NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958.
   On 1 October 2012, the Department of Immigration and Citizenship notified you that the visa which authorizes your continued stay in Australia may be liable for cancellation under s 501 of the Migration Act 1958 on character grounds.

   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 current Class TY Subclass 444 Special Category (Temporary) 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. 

   Please note that visa cancellation may be re-considered if you commit further offences or otherwise breach the character test in future.  Disregard of this warning will weigh heavily against you if your case is re-considered.

   Please note that Special Category visas automatically cease on the departure of the visa holder.
   ……

   Yours sincerely
   …..
   

   [33] Ibid, G19, pages 161 – 162.

   18 January 2013”[33]

5. The abovementioned Notice contains a provision for the Applicant to acknowledge receipt of the communication by signing and returning an attached page evidencing such receipt.  While such signed receipt does not appear in the written material, I cannot recall any notable objection either from the Applicant or on his behalf that this Notice was not received. Despite receiving this Notice, the Applicant took it upon himself to commit the very serious offences relating to the unlawful import/export of a marketable quantity of border controlled drugs or plants (heroin) in Perth on 5 February 2014. This is barely 12 months after he received the abovementioned Notice from the Minister’s Department.

6. There is no other finding for this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction other than for it to strongly militate in favour of a finding that the Applicant’s conduct can only be characterized as very serious. I so find.

7. Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e), (f), (g) and (h) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. The Applicant’s criminal history is not a short one and his appearances before lawful authority, both here and in New Zealand, are indeed numerous. On any reasonable view, the Applicant’s difficulties with lawful authority have very significantly featured during his time in this country. Consistent with the sentencing remarks of Her Honour Braddock DCJ, the significant level of the seriousness of his offending in this country ought not be ameliorated by addiction issues to illicit substances. He has had the benefit of (1) initially lighter and non-custodial sentences; (2) the opportunity to meaningfully engage with the rehabilitative process and (3) as recently as January 2013, a warning from the Minister’s Department that any further offending would seriously jeopardize his migration status in this country. 

8. He has failed to act upon or take notice of any of the three immediately preceding opportunities. Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

9. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:

   (i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (ii)Paragraph 13.1.2(2)(b) requires me to consider 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 reoffending.

10. In the hearing before me, the primary independent witness who provided evidence informing the Tribunal about the above two factors was the forensic psychologist, namely, Dr Gavan Palk. Dr Palk was engaged by the Applicant to provide a medico-legal report for these proceedings. His report is dated 28 February 2019 and forms part of the written evidence[34] in this matter. Dr Palk also gave oral evidence at the hearing. It is, I think, important at this juncture to review the substantial majority of the evidence of Dr Palk.

    Dr Palk:  Evidence in Chief:

    [34] Exhibit 3, Statutory Declaration of the Applicant declared on 28 February 2019, exhibited to that Statutory Declaration.

11. Dr Palk confirmed the content of his report dated 28 February 2019.  He also confirmed that he saw the Applicant on one occasion and also spoke to one of his daughters by telephone for the purposes of preparing his report.

    Dr Palk:  Cross Examination

12. The representative of the Respondent was Mr Burgess whose questions to Dr Palk were as follows:

    Mr Burgess:Would you accept that as part of your role as a forensic psychologist, your role is to consider a history and to form a conclusion or conclusions based on that history?

    Dr Palk:          Yes, that’s correct.

    Mr Burgess:And, in that respect, it’s important for your conclusions that the history you receive is an accurate history?

    Dr Palk:          Yes, that’s correct.

    Mr Burgess:And, just as a general proposition, if you were to be given a different history, there is a reasonable chance that your opinion as to the conclusion would change?

    Dr Palk:          Yes, that’s a possibility, yes.

    Mr Burgess:Doctor, you refer in your report to a sexual offence risk appraisal guide?

    Dr Palk:          That’s correct.

    Mr Burgess:    Could you explain just briefly what that is?

    Dr Palk:That’s a scale that’s being developed through research and it looks at things like the history of the man and his tendency towards violence as well; his tendency or his natural inclinations towards sexual offence proclivities.  It also takes into account mental health concerns.  It also measures …. takes account of a psychopathic score which is worked out from what’s called a psychopathic check list that’s been well researched by Hare.  It’s a fairly standard assessment, most criminal courts prefer that you use that.  That’s the sexual violence risk guide … is a static document.  In other words, it really takes into account historical accounts only and your score can be increased on that.  That’s why we often do the sexual violence risk which also takes into account dynamic factors which looks at how he’s addressed those issues and his rehabilitation he’s done and how he’s performing over the last number of years in relation to those sorts of interests.

    Mr Burgess:And with respect to that … that’s the second scale that you have referred to  at paragraph 7.7 of your report on page 13?

    Dr Palk:That’s correct.

    Mr Burgess:Now, in respect of those tests, if I can call them that, it would be right to say that those tests also rely on an accurate history being given?

    Dr PalkThat’s correct, yes.   It has to be accurate.   You will come up with a different score, yes, not necessarily markedly, because you take into account the whole history and everything, it may not accept the level because your scores, whether you’re medium, low or high, is within a range, so you might, even though you might have some inaccuracies and that inaccuracy may be corrected, it may increase your score but you still may be within the range of low or medium.  Obviously, if it was another offence that I wasn’t aware of or there are other sexual concerns that I wasn’t aware of, yes, that would most definitely affect his risk, particularly if they were recent.  That’s just an example.

    Mr Burgess:And that’s especially the case you said of the sexual offence risk appraisal guide, that takes into account only historical events?

    Dr Palk:Yes, that’s correct.

    Mr Burgess:Doctor, is it fair to say that you place weight in the results you get from those tests in forming your ultimate opinion in respect of the risk of re-offending?

    Dr Palk:Sorry, I didn’t quite understand that.

    Mr Burgess:Sorry, I’ll break it down for you. Those tests that you administered, essentially speaking, essentially spit out a score, is that correct?

    Dr Palk:Yes, that’s correct.  It’s based on – sorry, just to explain it – both tests have been researched against hundreds, thousands of sex offenders in the western world.  And you get an average percentage and it gives a profile and your score will fit a certain profile and the profile of the risk of a certain population of offenders so it is based on a population or a group of people.

    Mr Burgess:My question was Doctor, though, going back to my question, my question was that it’s true that you place weight on the test results in forming your final opinion about the risk that someone might re-offend in a sexual nature.

    Dr Palk:Aahhm, yes, I do, in part, and more so clinically, because your clinical opinion has been shown categorically both for psychiatrists and psychologists to get it wrong 70% of the time.  That’s why if you use these objective tests, you’re more likely to be accurate.  But having said that, the objective tests do take into some account your clinical opinion and, of course, you do have regard to other documents that I have seen.

    Mr Burgess:Doctor, just on that point, was I understanding you to say that without administering these objective tests, the subjective opinion based on the presentation will be wrong 70% of the time?

    Dr PalkYes, about …  yes.  Quite a high … when you just do clinical assessments … when you base it just on clinical experience alone, of psychiatrists or psychologists – is more likely to get it wrong.  And sometimes they are more likely to be cautious, the higher the risk of being more cautious when you’re basing it on clinical, by adding in the objective test, you are more likely to get an impartial objection.   Having said that, there may be, there’s always an allowance for idiosyncracy and this is one of the criticisms that these types of tests … that they are based on populations or groups of people and the individual you are looking at may not indeed fit that population for cultural reasons.  I mean, he does because of his culture, but, he may not, for example, if you are an Indigenous person, from India or China or something.

    Mr Burgess:Yes, but that’s not relevant to these matters?

    Dr PalkNo.

    Mr Burgess:Doctor, in your report, you conclude that the sexual offences which the Applicant was convicted of did not reveal a paedophilic nature?

    Dr Palk:That’s correct.

    Mr Burgess:Why do you say there was no paedophilic interests in the offending?

    Dr Palk:I didn’t say that he didn’t have a paedophilic interest.   I said that he hasn’t got a tendency towards paedophilia.   Just on the circumstances he did it out of an act of revenge, an act of anger and an act of depression.   That’s one thing.   Two, it didn’t seem to be predatory in nature.  He doesn’t go out looking for children on the streets or parks or identifying with women who have young children and trying to form relationships with them.  That’s what you’re looking for in predatory ….  It was within the family context as I understand it.  It was the daughter of the partner he was with at the time or had broken up or was breaking up with at the time and he was angry about her having affairs.  I have to  re-look at my report.   I’m going from memory at the moment and I do have it in front of me, but, say,  the other thing is it’s been 27 years from my knowledge, I have no records or didn’t see anything in the documents …

    Mr Burgess:We’ll go into that in a second doctor.  I’m just talking about what you found about paedophilic, it wasn’t of a paedophilic nature – I think that’s what your evidence was?

    Dr Palk:I said he didn’t have a tendency, he fitted what we call a situational child molestor, if you like.  I was situational.   For those reasons, of anger, depression and out of revenge.

    Mr Burgess:Doctor, you have set out at paragraph 5.1 and paragraph 5.2 the history of sexual offending.  Do you have that in front of you?  It’s page 3 of your report.

    Dr Palk:Yes, I’ve got that in front of me, yes.

    Mr Burgess:That’s the history you have recorded in your report.  Now, you have said there were no official details of the nature and extent of those offences?

    Dr Palk:That’s right.

    Mr Burgess:What was your understanding of the offence or offences as reported by the Applicant to you?

    Dr Palk:Well, because there was no official recommendations, I could only get information from what was on Corrective Service documents that was provided and they didn’t have any official records of it.  As I said, he explained to me that he was in a relationship and that relationship was shattering or breaking up. He had discovered that she was having affairs. She had a daughter to another relationship and he, in an act of revenge or anger or depression at the time, that’s how he explained it to me, he molested her.

    Mr Burgess:If you are taking an accurate history to plug into those tests, surely you would take a more detailed history of exactly what occurred, not just that there was an act of molestation? You would have delved into the detail of what that molestation was. Wouldn’t you?

    Dr Palk:Yes, I did, as I understood it.  It was of a lower level.   There was no penile penetration as I understood it. It wasn’t at the higher range of offending.  It amounted to as I understood it, digital penetration or touching.  But I didn’t get the impression it was, you know, penile penetration from what he said to me and there was nothing in the documents to indicate that.  And obviously, it had some bearing or weight on the sentence that he was given at the time but, no, I had no official details of them, that’s correct.

    Mr Burgess:So, again, I am asking you about the specifics of it, you are telling me what assumptions you made; do you have notes at all which state exactly what the Applicant told you he did to his step-daughter?

    Dr Palk:He told me he had molested her, had touched her …

    Mr Burgess:Yes, and you didn’t think to explore that further?

    Dr Palk:Well, in what, well … I explored it in the sense of whether he had penetrated her but not to any further extent.  If someone tells you they have touched or molested her, and hasn’t raped her, then you accept that.   Unless I’ve got documentation, I can’t cross-examine him without any documentation indicating anything different.

    Mr Burgess:Yes, okay.  Well, was it your understanding that it was a single act of molestation?

    Dr Palk:Yes, that was my understanding, yes. 

    Mr Burgess:Now, having regard to the fact that the history you took was one of a single act of molestation which at most involved digital penetration, if it was the case that it was multiple acts over many years or multiple years, in this case, 3 years, and at least 11 separate counts, would that change your ultimate conclusion in respect to this matter?

    Dr Palk:Aahhm, well, I guess the thing that I have in my mind is that 27 years ago….. what it does tell me that he hasn’t been totally honest or hasn’t been completely forthcoming as to the complete number of offences and over what period of time.

    Mr Burgess:You’re talking about the length of time, but with respect to the sexual offence risk appraisal guide, which goes completely off the history of the offending, that result that you got in respect of that may well not be valid if the assumption you made was that it was a single event?

    Dr Palk:No, that’s not quite correct. It probably wouldn’t change the score at all because the question asked … it simply asked the … it simply asked the question: Has he committed a sex offence and the nature, it doesn’t really ask the nature of it, there’s a higher score if it’s a boy because the research shows that if you are a homosexual paedophile you are more likely to offend than a heterosexual paedophile, so you actually get a higher score if you are of the former.  In this case, it was heterosexual so it wouldn’t probably make any difference to his score if there are a number of offences or a number of convictions, it might, but it would make a difference by one or two points, it’s not going to put him into the medium risk range.

    Mr Burgess:So, what you’re saying doctor is that if someone has committed a single offence of this nature, they are, according to the scale, they are at a very similar likelihood of reoffending as someone who has committed multiple sexual offences?

    Dr Palk:Yes, that’s correct.  Yes, I mean … Because what you are looking at is you’re also examining his fantasy, his deviancy level, his interest of proclivity or his interest in children. 

    Mr Burgess:And you would accept then, doctor, having regard to that, if the Applicant has given you an incorrect history that it would cast some doubt about whether the other things he told you were correct?     Would you accept that as a general proposition?

    Dr Palk:Aaahhm, no I don’t necessarily accept that as a general proposition because, some offenders as we all know, will tell you most of the truth and tell you a little bit of the truth and tell you … sometimes there’s parts of things they will leave out … Aahhm … So I don’t accept that as a general proposition that doesn’t necessarily mean that he told me other things that weren’t true … aahhm … but of course I can only compare his information with documentary information overall.

    Mr Burgess:So, doctor, is it your evidence that if you found out that someone had grossly underestimated or underreported their sexual offences for which you were putting into a scale to determine the risk of reoffending if you found out that information, you wouldn’t have a healthy scepticism about some of the other answers they’d given you?

    Dr Palk:Aahhm, I would have to re-look at those answers and I would like to re-interview him. Like, if I’d been given that information afterwards, I would have gone back and interviewed him and probably clarify some of the other information, absolutely, but in terms of risk, it might put a healthy scepticism on me saying “Oooo” …. I would want to know the period of this, you’re suggesting 3 years.  Maybe he has got a paedophilia … You’ve got to be under 12 for a starters  …

    Mr Burgess:Doctor, I put it to you that it did start before the child was 12; the Applicant has been charged with indecently dealing with a child under the age of 12 and allowing a child under that age to indecently deal with him, that would have changed your opinion, wouldn’t it?

    Dr Palk:Oh look … yes, at the time what it would suggest to me at the time,  it’s more than just a … it’s more than just a situational interest if it’s occurring a significant amount of time. You’d have to say he has an infatuation with that child or an opportunity to access that child or you’d have to start asking yourself: ‘Has he been setting up situations so that he would be alone with that child?’ and that would certainly suggest more entrenched sexual deviancy at the time, absolutely.  Aahhm, … but you would then have to bring yourself to the current day and say well, what has he done in the last 27 years?  Has he operated on that deviant interest? See, one can have a life time deviant interest and not operate on it.

    MrBurgess:   Doctor, with respect to that length of time, you noted the sexual offence risk appraisal guide doesn’t take that into account. Is that right?

    Dr Palk:No, it takes into account static history only. Yes, that’s correct.

    Mr Burgess:Excepting that the thing that takes that into account is your clinical assessment, which, if that’s done without the objective evidence, is incorrect 70% of the time, you can’t possibly stand by your opinion if the sexual risk appraisal guide were to change? Or if the history upon which you had based that opinion significantly changes?

    Dr Palk:Well, yes I can, because I also gave him the sexual violence risk scale, which takes into account dynamic factors and current factors. I am confident, unless you can show me some evidence that he has re-offended in recent times, if he’s shown some interest in children such as looking at child pornography or something like that, that would change my opinion, but not for something that’s happened 27 years ago. Whatever happened 27 years ago, even if it was an entrenched sexual deviance which is starting to look like the case, for 27 years,  unless you give me other evidence, there’s no history of further sexual offences against children. That means he has done something to address it or change or not act on his deviant interests, but at least we’ve got no evidence and I have to have evidence, it’s got to be evidence-based, I have to have evidence to change my opinion.

    Mr Burgess:Now Doctor, the evidence before this Tribunal and the evidence that was given by the Applicant was that he told you that he … the act of molestation was the rubbing of this less than 12 year old girl’s genitals through her underwear?

    Dr Palk:That’s correct.

    Mr Burgess:On one occasion.

    Dr Palk:That’s correct, yes.  

    Mr Burgess:Now, the evidence before this Tribunal and the evidence from the Queensland Police which I understand you haven’t seen, is that correct?

    Dr Palk:That’s correct, yes. Yes, I haven’t seen any information.

    Mr Burgess:Was that there were 11 separate offences over the period from 1988 to 1991? Those offences included offences involving, on numerous occasions, the Applicant exposing himself to the child, the Applicant having the child grip his penis with his hand wrapped around the child’s hand?  Multiple occasions of or at least, sorry, at least one occasion of the Applicant spitting on his finger and placing it down the front of the child’s underwear and masturbating the child or rubbing the child?  Now, with respect to that evidence, that was over a period of 3 years. Does your evidence remain that this does not change your opinion?

    Dr Palk:It doesn’t change my opinion on his current sexual risk assessment.  What it does change  my opinion about is that he has minimized what he has done and hasn’t been truthful to me, he hasn’t totally told me everything about what’s happened or over what period.  That’s what it says to me … aahhm .. for whatever reason in his own mind and what it says to me is that he may, he may well  still have an interest in children, but he’s managed for 27 years …. There’s no evidence I should say, there’s no evidence that we’ve got, that he’s acted on that for 27 years, whatever that deviance was. I mean, generally, if you’ve got an entrenched deviance like that, it’s life time, it’s not going to go away, but people do learn to manage it and control it, just like any other type of addiction whether it’s alcohol or drugs or sexual deviancy, it doesn’t really …. It won’t change my risk level but just objectively, it might change my view or opinion about him, clinically, but it won’t change his level of risk objectively.

    Mr Burgess:Yes, and Doctor, finally, you said it would indicate that he’s minimizing the behaviour?

    Dr Palk:Yes.

    Mr Burgess:Would you accept that there is some correlation between denying behaviour and not accepting behaviour and minimizing behaviour, and a risk of re-offending?

    Dr Palk:No, absolutely not. The research is very clear on that. There is no relationship between denial and risk of re-offending. In fact, some people use … some offenders will use denial as a protection measure … aahhm … they don’t want to go there; they don’t want to know about it; they want to put it behind them; they want to put it in a box and put it away. There’s certainly no evidence at all, no research evidence to link denial and future risk.  If it comes to empathy, that may be a different reason or if it comes to an ongoing deviance/sexual arousal that they haven’t managed, that’s what you look at mainly in terms of risk … aahhm … opportunities not managing his risk, not understanding his risk factors. Just as an alcoholic, you know… ‘I shouldn’t drink, I won’t go into a pub’.  Well, if he has managed his sexual deviant interest by avoiding children and keeping away from children, he has to be given credit for that.   Although, of course, he may still minimize that to people he meets or people in authority because he doesn’t want to face it or admit he’s ashamed or embarrassed by it.   But I mean, I certainly got the impression that he was extremely embarrassed and ashamed and regretful of his actions.  But yes, on the basis of what you’ve told me, he certainly did minimize.

    [My underlining]

    Dr Palk:  Re-examination

1. Counsel for the Applicant was Ms Armitage. Her re-examination of Dr Palk was initially concerned with establishing that he had received the s501 G Documents in this matter. Dr Palk responded with “Yes, I definitely have those documents …” There followed the following questions and answers:

   Ms Armitage:  But just in conclusion, you know, I don’t mean to worry you, in conclusion, regardless of whether it was one, two or three occasions 27 years ago, would your opinion change if your view was that it was only on one occasion as opposed to three?

   Dr Palk:No, I’ve already answered that question. I have come across that criminal history, which says ‘Cairns District … 17 February 1994 … wilfully and indecently act … 2 charges indecently dealing with a child under the age of 14, 3 charges. It just says the total sentence of 3 years.

   Ms Armitage:  That’s correct Dr Palk.

   Dr Palk:I’ve certainly got that, but it doesn’t list the detail of the offences or over what period of time, but yes, it goes down, yes, yes, I recall seeing that.

   Ms Armitage:  And does not being reminded of that, change your view of your report?

   Dr Palk:No, because as I said before, I look at the clinical opinion and I look at the objective evidence and I look at what he has done over 27 years. I mean, if you give me evidence that he’s shown any evidence of a sexual interest in a child since that time or in recent times, then yes, that would change my opinion.  I’d be very concerned.

   The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct

2. It is contended on behalf of the Applicant that his past offending involved a majority of offences related to drugs save for the offending for which he was sentenced in February 1994 representing the child-based offences. I respectfully disagree with the contention put on behalf of the Applicant that the child-based offences were both “… situational and isolated events and not in the nature of sexual intent”.[35]  Similarly, I respectfully disagree with the contention that “… the delegate was of the view that the Applicant was not motivated by pedophilic [sic] interests in the commission of those offences (see para 38 of the delegate’s decision)”.[36]

   Was the offending situational and isolated?

   [35] Exhibit 1, Applicant’s SFIC, page 4, paragraph [23].

   [36] Ibid, pages 4 – 5, paragraph [23]

3. The cross-examination of Dr Palk, to my mind, revealed something different and specifically indicated that Dr Palk had not taken a sufficiently detailed or thorough history from the Applicant. The following passage in the cross-examination exposes that deficiency:

   Mr Burgess:What was your understanding of the offence or offences as reported by the Applicant to you?

   Dr Palk:Well, because there was no official recommendations, I could only get information from what was on Corrective Service documents that was provided and they didn’t have any official records of it.  As I said, he explained to me that he was in a relationship and that relationship was shattering or breaking up.  He had discovered that she was having affairs. She had a daughter to another relationship and he, in an act of revenge or anger or depression at the time, that’s how he explained it to me, he molested her.

   Mr Burgess:If you are taking an accurate history to plug into those tests, surely you would take a more detailed history of exactly what occurred, not just that there was an act of molestation? You would have delved into the detail of what that molestation was.  Wouldn’t you?

   Dr Palk:Yes, I did, as I understood it.  It was of a lower level.  There was no penile penetration as I understood it. It wasn’t at the higher range of offending. It amounted to as I understood it, digital penetration or touching. But I didn’t get the impression it was, you know, penile penetration from what he said to me and there was nothing in the documents to indicate that.  And obviously, it had some bearing or weight on the sentence that he was given at the time but, no, I had no official details of them, that’s correct.

   Mr Burgess:So, again, I am asking you about the specifics of it, you are telling me what assumptions you made; do you have notes at all which state exactly what the Applicant told you he did to his step-daughter?

   Dr Palk:          He told me he had molested her, had touched her ….

   Mr Burgess:    Yes, and you didn’t think to explore that further?

   Dr Palk:Well, in what, well ….. I explored it in the sense of whether he had penetrated her but not to any further extent.  If someone tells you they have touched or molested her, and hasn’t raped her, then you accept that.   Unless I’ve got documentation, I can’t cross-examine him without any documentation indicating anything different.

   Mr Burgess:Yes, okay.  Well, was it your understanding that it was a single act of molestation?

   Dr Palk:          Yes, that was my understanding, yes. 

4. Thus, Dr Palk predicated his report on the nature of the history of this offending that had been provided to him by the Applicant. The Applicant told Dr Palk only that “… he molested her.” This conduct was framed by the Applicant around apparent disharmony and unhappiness between him and the mother of the child who was the unfortunate victim of the offending. This history caused Dr Palk to say that the offending “was of a lower level”. He said that there was no digital penetration or touching. Ultimately, Dr Palk agreed with the suggestion that the entire episode of the Applicant’s child-based offending comprised a single act of molestation. This is plainly incorrect. These events were not situational and isolated events as is propounded on behalf of the Applicant.

5. When confronted with the reality that the Applicant’s child-based offending did not involve a single act of molestation but that it involved multiple acts over many years, in this case, three years, resulting in 11 separate counts being proffered against him, Dr Palk conceded that the Applicant “hasn’t been totally honest or hasn’t been totally forthcoming as to the complete number of offences and over what period of time.”

   Was the offending perpetrated in the nature of sexual intent?

6. I have misgivings about the suggestion in Dr Palk’s evidence that the Applicant’s child-based offending was not in the nature of sexual intent.  It was put to him that the offending involved 11 separate offences during the period 1988 to 1991. It was also put to him that, described in explicit terms, the offending involved the Applicant, on numerous occasions, exposing himself to the child and having the child grip his penis with his hand wrapped around the child’s hand. It was further put to Dr Palk that on at least one occasion, the Applicant’s offending involved spitting on his finger and placing it down the front of the child’s underwear and masturbating the child or rubbing the child. None of this factual reality had been provided by the Applicant to Dr Palk.

7. In response, Dr Palk said that if he had been given this sort of history it would have changed his opinion to the effect that the Applicant “… has minimized what he has done and hasn’t been truthful to me, he hasn’t totally told me everything about what’s happened or over what period. That’s what it says to me … for whatever reason in his own mind and what it says to me is he may, he may well still have an interest in children …”

8. I thus have misgivings about the capacity of Dr Palk’s evidence to dispel or categorize the offending as either situational or isolated and not in the nature of sexual intent.

   Was the Applicant’s child-based offending motivated by paedophilic interests?

9. I have similar misgivings about Dr Palk’s evidence when it is used to propound a contention that the Applicant was not motivated by paedophilic interests in the commission of those offences. As will be noted from the above cross-examination record, Dr Palk was specifically asked why he reached a conclusion that the Applicant’s offending was not paedophilic in nature and did not display paedophilic interests. Dr Palk responded with “I didn’t say that he didn’t have a paedophilic interest. I said that he hasn’t got a tendency towards paedophilia”.

10. In the light of this response, it was put to Dr Palk that the Applicant’s offending started before the subject child was 12 years of age and that the Applicant had allowed a child under the age of 12 to indecently deal with him. Dr Palk was asked whether, in those circumstances, his opinion of paedophilic tendencies in the Applicant’s behaviour would change. Tellingly, Dr Palk conceded that “Yes … it would suggest to me … it’s more than just a … situational interest if it’s occurring a significant amount of time. You’d have to say he has an infatuation with that child or an opportunity to access that child … you’d have to start asking yourself: ‘has he been setting up situations so that he could be alone with that child?’ and that would certainly suggest more entrenched sexual deviancy at the time, absolutely.”

11. The Respondent contends that were the Applicant to re-offend, the nature of the resulting harm would be very serious and likely to involve physical and psychological harm to potential victims, up to and including death. Further, the Respondent contends that any repeat of the Applicant’s previous conduct is unacceptable.[37] I agree with these contentions.

    [37] Exhibit 4, Respondent’s SFIC, page 10, paragraph [42].

12. Regard should also be had to the nature of the Applicant’s drug offending, particularly the very serious importing/exporting of a marketable quantity of heroin into Australia for which he was sentenced in May 2015. I have difficulty in concurring with the contention that the Applicant’s offending was committed entirely on the basis of meeting his own needs as a user of heroin. In this regard, it is necessary to carefully review the sentencing remarks of Her Honour, Braddock DCJ who sentenced the Applicant on the basis that the importation was not necessarily a venture embarked upon by the Applicant for his profit or to make a fortune. However, Her Honour, Braddock DCJ did say that the Applicant “… would have, had occasion presented itself, sold or exchanged or supplied some of the drug to others”.[38]

    [38] Exhibit 5, Section 501 G Documents, G7, page 64.

13. Several further things can be said about the drug offending for which the Applicant was sentenced in 2015:

    ·As I have stated earlier, I have difficulty in accepting the Applicant’s evidence that the heroin was only available in a fixed size “in a compressed block” and that, as a result, this was the only quantity of heroin he was able to buy;

    ·The logistical effort involved in importing the heroin could not be said to be unsophisticated. It involved the Applicant attending a DHL Express outlet in Chiang Mai (Thailand) with a box which contained a motor cycle fuel tank.  Welded to the underside of, and protruding into, the motor cycle fuel tank was a steel box. Inside the steel box was a white-coloured substance which, on latter analysis, was found to be 218.8 grams of pure heroin. The Applicant paid for the box containing the motor cycle fuel tank and the heroin to be delivered to his home address in South Hedland;[39]

    ·Evidence was led at the five day trial in 2015 drug offending to the effect that the Applicant was found by Police to be in possession of $125,700 in cash in a safe deposit box. This evidence featured in one of the grounds of appeal by the Applicant against his conviction. This particular ground of appeal was dismissed.[40]

    [39] Ibid, G6, page 33.

    [40] Ibid, page 33 and 60.

14. I thus have difficulty in accepting the submission that the nature of the harm resulting from any re-commission of either child-based or drug offences “would cause nobody else harm other than himself and those closest to him”.[41] I reject that contention accordingly. I am mindful of the principle that the community’s tolerance for any risk of re-offending becomes lower as the seriousness of potential harm increases. Were this Applicant to re-offend, the resulting harm would be very serious and it could conceivably involve the occasioning of very serious and even catastrophic physical or psychological harm to members of the Australian community.

    [41] Exhibit 1, Applicant’s SFIC, page 5, paragraph [26].

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

15. The Applicant has acknowledged that his almost 40 year addiction to heroin has been at the epicentre of his offending. He acknowledges that “My antisocial behaviour leed [sic] to my offences due to poor choices steeming [sic] from my drug addiction.  Which I know is no excuse”.[42] It is contended on behalf of the Applicant that “… there is no likelihood of further criminal conduct or re-offending of any kind”.[43]

    [42] Ibid, G10, page 85.

    [43] Exhibit 1, Applicant’s SFIC, page 7, paragraph [43].

16. An assessment of any likelihood of re-offending requires discussion about Dr Palk’s findings in this regard. Dr Palk conducted a clinical assessment of the Applicant and administered a number of assessment tools comprising:

    ·the Psychopathy Check List – Revised (PCL-R) – to measure for any elevated levels of psychopathic features;

    ·the Personality Assessment Screener – to identify any major mental health and personality concerns;

    ·the Sexual Offence Risk Appraisal Guide (SORAG) -  to predict future risk of sexual offending;

    ·the Sexual Violence Risk Scale (SVR-20) - to predict future risk of sexual offending;

    ·Kaufmann Brief Intelligence Test (K-BIT) – to screen for any cognitive defects and to measure overall intelligence quotient.

17. Two primary contentions were made on behalf of the Applicant based upon test results achieved by Dr Palk upon application of the above assessment tools. First, it is said that “Not one of those assessments resulted in an indication of such risk.  In fact, the results were quite to the contrary with strong underlying evidence of rehabilitation and remorse”.[44] Second, “… the risk assessments in relation to the risk of sexual offending all produced very low scores with Dr Palk concluding that the indecent dealing offences were situational and isolated”.[45]

    [44] Ibid, page 5, paragraph [30].

    [45] Ibid, page 6, paragraph [31].

18. In cross-examination, Dr Palk was asked about whether the accuracy and correctness of the tests that he had administered (for recidivism) all rely on an accurate history being given. Dr Palk agreed and said “That’s correct, yes. It has to be accurate. You will come up with a different score, yes, not necessarily markedly because you take into account the whole history and everything …”. Dr Palk confirmed that the tests he conducted about recidivism essentially involved the application of a methodology to produce a given score or measurement of risk.

19. Dr Palk was also asked whether it is true that he places weight on the test results deriving from the abovementioned tests for recidivism when forming his final opinion about the risk that someone might re-offend in a sexual nature. Dr Palk agreed and added:

    “Aahhm, yes, I do, in part, and more so clinically, because your clinical opinion has been shown categorically both for psychiatrists and psychologists to get it wrong 70% of the time.  That’s why if you use these objective tests, you’re more likely to be accurate but having said that, the objective tests do take into some account your clinical opinion and, of course, you do have regard to other documents that I have seen.”

20. Dr Palk was pressed on this point and was asked to clarify his view that without administering these objective tests, the subject of opinion based on the presentation will be wrong 70% of the time. Dr Palk said:

    “Yes, about …. Yes. Quite a high … when you just do clinical assessments … when you base it just on clinical experience alone, of psychiatrists or psychologists – is more likely to get it wrong. And sometimes they are more likely to be cautious, the higher the risk of being more cautious when you’re basing it on clinical, by adding in the objective tests, you are more likely to get an impartial objection.”

21. In cross-examination, Dr Palk was also asked about any re-configuration or recasting of his report and findings in circumstances where someone had grossly under-estimated or under-reported their sexual offences against which he was applying a scale to determine that person’s risk of re-offending. In particular, he was asked whether he would have a healthy scepticism of the answers/history that patient/person had provided to him if he was subsequently made aware of such gross under-reporting or under-estimation of the relevant history. Dr Palk’s response was, to my mind, telling:

    “Aahhm, I would have to re-look at those answers and I would like to re-interview him. Like if I’d been given that information afterwards, I would have gone back and interviewed him and probably clarify some of the other information, absolutely, but in terms of risk, it might put a healthy scepticism on me saying ‘Oooo’ …. I would want to know the period of this, you’re suggesting 3 years. Maybe he has got a paedophilia …”

22. To my mind, the significant difficulty with Dr Palk’s findings and evidence is that he accepts that clinical assessments, on their own, conducted by either psychiatrists or psychologists, can be incorrect up to 70% of the time but that when those clinical assessments are augmented by the abovementioned objective tests (for recidivism), the accuracy and reliability of the findings markedly improves. The resulting difficulty arising from the cross-examination is that it demonstrates that Dr Palk’s administration of the abovementioned objective tests for recidivism were conducted on the basis of the Applicant’s gross under-reporting of the specific nature and historical length of his child-based offending.

23. In other words, the critical “input variables” utilized by Dr Palk to arrive at whatever scores he produced for the Applicant’s risk of recidivism from the objective tests were faulty, inaccurate or tainted. In those circumstances, I am of the view that most, if not all, of Dr Palk’s resulting findings about the risk of recidivism (especially in relation to the child-based offending) are likely tainted, or more correctly, are requiring of re-administration of those objective tests based on a complete and fulsome history of the specific nature and historical length of the Applicant’s child-based offending. Only in this way can the Applicant’s assertion of committing the child-based offending as an act of revenge against a partner who had spurned him be properly evaluated and assessed.

24. A recurring theme in Dr Palk’s responses to questions in cross-examination about any adverse impact of the Applicant’s gross under-reporting of his child-offending history was to retreat to the historical nature of the offending. The predominant theme of this line of response involved words to this effect: “Whatever happened 27 years ago, even if it was an entrenched sexual deviance which is starting to look like the case, for 27 years, unless you give me other evidence, there’s no history of further sexual offences against children.” Such a response is, respectfully, trite and unconvincing. It seems to suggest that even though there may be significant and fundamental difficulties in his findings arising from the Applicant’s gross under-reporting of the specific nature and historical length of the child-based offending, none of that matters too much now because it happened some time ago.

25. With specific reference to the Applicant’s heroin addiction issues, when sentencing him in mid-2015, the learned Braddock DCJ noted these things:

    “On several occasions you have attempted to detoxify and to keep the matter under control.  You have tried methadone without success in terms of completely freeing yourself from your addiction…. [46]

    ….

    The psychologist’s report which I have read …. expressed the view that she did not think that you were in fact committed to giving up heroin, that it served you as a coping mechanism in your life at various times …. [47]

    ….

    I do not find that your prospects for rehabilitation from heroin can be described as good….  Even if you were not to be rehabilitated from your use of the drug, I am moderately confident that you would remain a user rather than a dealer in any way.”[48]

    [46] Exhibit 5, Section 501 G Documents, G7, page 66.

    [47] Ibid.

    [48] Ibid, G7, page 67.

1. In his report tendered in these proceedings (dated 28 February 2019), Dr Palk made these observations about the Applicant and heroin:

   “9.2 Mr Durham impresses as being detoxified from his long history of heroin use and seems to have a determination not to return to heroin use.  Although he acknowledges he has relapsed in the past he says his main incentive is to maintain a relationship with his daughters and watch his grandchildren grow.”[49]

   ….

   “12.3. …. Mr Durham has not used heroin since prior to his imprisonment and he has completed substance abuse prevention programmes and a methadone programme. In the writer’s opinion, …. he is considered a low risk of recidivism.”[50]

   [49] Exhibit 3, Statutory Declaration of the Applicant declared on 28 February 2019, exhibited to that Statutory Declaration, page 8, paragraph [9.2].

   [50] Ibid, page 9, paragraph [12.3].

2. I concur with the contention of the Respondent regarding the Applicant’s claim of rehabilitation from heroin addiction. Specifically, those claims have not been tested outside the controlled environment of criminal custody and immigration detention. He has a history of relapsing back into heroin addiction and the only way to assess whether such a relapse is not likely to occur is by testing his resistance to a relapse outside that type of controlled custodial environment.

3. With specific reference to the Applicant’s risk of re-offending in the realm of child-based offences, I am of the view that given the problematic nature by which Dr Palk has been caused to arrive at his findings, the Applicant’s risk of recidivism remains (at best) unsatisfactorily determined or, more preferably, requiring of re-examination by someone of the ilk of Dr Palk. Such re-examination and consequential reporting must, for the reasons outlined above, be based on a complete and fulsome history of the specific nature and historical length of the Applicant’s child-based offending.

4. With specific reference to the Applicant’s risk of re-offending in the realm of illicit drugs, I am of the view that despite his claims of rehabilitation, his history is littered with relapses back into the unfortunate clutches of addiction. His claims of rehabilitation have been made while he has been in the closed environs of either criminal custody or immigration detention and are yet to be tested in the broader community.

   Conclusion: Primary Consideration A

5. I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community be it in the realm of child-based or drug offending.

6. Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and potentially catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.

   Primary Consideration B: The best interests of minor children in Australia

7. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that 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.

8. The material discloses two minor children potentially affected by the cancellation decision. Those children comprise two granddaughters of the Applicant aged five and two, respectively.

9. It is contended[51] on behalf of the Applicant that he has a strong relationship with his two grandchildren and enjoys regular visits with their mother and aunt. The Applicant has rekindled his relationship with his daughter who is the mother of both of the two abovementioned grandchildren. The daughter gave evidence at the Hearing that she, her partner and their children (i.e. the abovementioned grandchildren) have been regularly visiting the Applicant during his time in immigration detention.

   [51] Exhibit 1, Applicant’s SFIC, page 7, paragraph [46].

10. It is further contended on behalf of the Applicant that he has “been given the opportunity to play a large role in his…granddaughters’ life…” It is propounded on behalf of the Applicant that it is “… clearly in their best interests that the Applicant remain in Australia so that the family can continue to develop their respective relationship into the future.”[52] The Applicant acknowledges that his time with the grandchildren has been restricted due to him being in criminal custody and/or immigration detention but he nevertheless views all contact with them as meaningful.

    [52] Ibid [48].

11. There is a mild concession on behalf of the Respondent that “…this consideration should only be given limited weight, if any, in favour of the Applicant…”[53] after one has regard to the factors appearing in paragraph 13.2(4) of the Direction.

    [53] Exhibit 4, Respondent’s SFIC, page 11, paragraph [47].

12. Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned children. Those factors relevantly comprise for present purposes:

    (a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    (e)Whether there are other persons who already fulfil a parental role in relation to the child;

    (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

13. Subparagraph (a) of paragraph 13.2(4) of the Direction refers to the nature and duration of the relationship between the child and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and (in this case) the grandchildren.

14. The grandchildren are aged 5 and 2 respectively. Due to the Applicant’s time in both criminal custody and then immigration detention, his time with the grandchildren has been severely limited and curtailed. There is no denying the stark reality that, save and except for visits that the grandchildren have made to him while in immigration detention, he has been absent (in a physical sense) from their lives for either the entirety of their lives thus far (in the case of the younger grandchild) or for a predominant period of their lives (in the case of the older grandchild). The Applicant’s contentions about his connection with his grandchildren, to my mind, are genuinely made but are mainly aspirational in nature.

15. Given the dearth of time he has spent with them thus far it is difficult to ascertain any “nature and duration” of any relationship he has had with them thus far in their lives. Accordingly, due to that factor and the reality that there have been long periods of absence from him in their lives, it is very difficult to attribute any significant weight to this sub-paragraph (a) in support of any proposition that his migration status to remain in this country should be restored.

16. Sub-paragraph (b) of paragraph 13.2(4) of the Direction requires a decision maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time there is until the child turns 18. It is unlikely that the Applicant will play any positive parenting role in the future having regard to his life-long involvement with drugs and drug offending together with his conviction in 1994 for sexual offences committed against his then step-daughter.

17. His role will very likely not be “parental” in the conventional sense. It will be ancillary in the familiar way that any grandparent has a relationship with their grandchildren. I accept that there is some time to elapse until both of the grandchildren turn 18. There is thus ample time for the Applicant to cultivate and develop his relationship with his two granddaughters. Being generous to the Applicant, one could afford a modicum of weight to this sub-paragraph (b) and find that it would be in the best interests of the Applicant’s infant grandchildren that his visa to remain in Australia be returned to him. But it is very limited weight only.

18. Sub-paragraph (c) of paragraph 13.2(4) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on the infant grandchildren. There is no direct evidence to suggest that the Applicant’s very serious offending in Australia has had any direct impact on his two infant grandchildren.

19. Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the two infant grandchildren from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways. We live in an age of electronic communication and it is undeniable that the Applicant will be able to have at least some measure of contact with his two infant grandchildren by SMS and/or social media platforms. The logical extension to this involves the introduction and maintenance of visual and real-time contact with the two infant grandchildren via Skype and other digital platforms.

20. Even if one accepts the Applicant’s evidence about an intention to have a strong bond with his two infant grandchildren, it is clear that were he to be returned to New Zealand, he would be able to maintain a level of contact with them. In these circumstances, this factor (d) is of minimal and of only slight weight in assessing whether restoration of the Applicant’s migration status is in the best interests of his two minor grandchildren.

21. Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children. On the present state of the evidence, there clearly are. The two infant grandchildren are primarily parented by their mother (the Applicant’s daughter) and her partner. For the purposes of this factor (e), I am of the view that it is of no weight in assessing whether restoration of the Applicant’s migration status is in the best interest of the two infant grandchildren

22. Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity. As best as I understood the evidence, the Applicant – since his time in criminal custody and then immigration detention – has had quite limited contact with his two infant grandchildren. I accept that the amount of time the Applicant has spent with his two infant grandchildren has been greater during the time he has been in immigration detention than when he was in criminal custody. It is difficult to apply any measure of weight to this sub-paragraph (f) in circumstances where the infant children are simply too young to provide any known views in respect of the offending history of their grandfather.

23. Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected the children in any way, including physical, sexual, and/or mental abuse or neglect. This factor has no weight and is not determinative of any finding about Primary Consideration B.

    Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct. For reasons already stated in relation to sub-paragraph (c), I am of the view that this sub-paragraph (h) – in the absence of any independent factual evidence about any physical or emotional trauma suffered by the grandchildren as a result of the Applicant’s offending conduct – is of no weight and is not determinative of any finding about this Primary Consideration B.

    Conclusion: Primary Consideration B

24. Having regard to:

    a)    the evidence of the Applicant and his daughter (the mother of the two infant grandchildren) about the nature of the relationship between the Applicant and his two infant grandchildren;

    b)    the absence of any convincing evidence of any genuinely parental or other similar role the Applicant has played in the lives of his two minor grandchildren given his significant absence from their lives due to his time in criminal custody and/or immigration detention;

    c)    the slight weight to be taken from factors (a), (b) and (d),of paragraph 13.2(4) of the Direction;

    d)    the Respondent’s concession that limited, if any, weight should be allocated to any of these factors indicating that revocation is in the best interests of the two minor grandchildren;

    - I am of the view that the best interests of the two minor grandchildren in Australia does weigh in favour of revocation of the decision to cancel the subject visa. I qualify this finding by saying that the weight attributable to this Primary Consideration B is moderate only and does not outweigh the weight I have attributed to Primary Consideration A.

    Primary Consideration C

25. I turn now to the final primary consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1)[54] of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.

    [54] The terms of paragraph 13.3(1) of the Direction are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.

26. For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending and his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should retain the right to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.

27. The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:

    ·He arrived in Australia in April 1982 as a 24 year old and commenced offending in July 1990, which is 8 years after arriving here.

    ·He has committed 25 offences since he was first dealt with by lawful authority in this country in July 1990. This equates to the commission of an offence approximately every 6 months during his 37 year period of time in this country;

    ·His offending has seen him before lawful authority on the following occasions:

    oJuly 1990;

    oFebruary 1994;

    oNovember 1999;

    oJuly 2002;

    oNovember 2003;

    oMay 2015; and

    oJuly 2015.

    ·His offending, both in New Zealand and Australia has been frequent. While the child-based offences for which he was convicted in 1994 are, without question,  very serious, there is no denying that his drug-based offending for which he was convicted in May 2015 was just as serious, if not more so, if one has regard to the severity of the sentence for the drug-related offending;

    ·His 37 years in this country have seen him dealt with by lawful authority on no less than seven occasions, equating to a sentencing episode just over approximately 5 and a quarter years during his time here;

    ·His offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention since mid-2015;

    ·For the totality of his offending in this country, the sentencing courts have seen fit to impose total custodial terms equating to approximately seven years and six months. In round terms, the Applicant’s offending has caused sentencing judicial officers to remove him from the Australian community for approximately eight years of the total 37 years he has been here. This does not include the time he has spent in immigration detention;

    ·Despite the best efforts of Dr Gavan Palk, the history of his child based offending provided by the Applicant to Dr Palk has been demonstrated to be grossly under-reported both as to its nature and length. The problematic nature by which Dr Palk has been caused to arrive at his findings means the Applicant’s risk of recidivism (in terms of his sexual offending) remains (at best), unsatisfactorily determined or, more preferably, requiring of re-administration by someone of the ilk of Dr Palk.

    ·Despite the further best efforts of Dr Gavan Palk it is necessary to point out that the Applicant’s risk of re-offending in the realm of illicit drugs and his asserted rehabilitation from reliance on heroin has only been tested in the closed confines of either criminal custody and/or immigration detention and is yet to be tested in the broader community.

28. I am mindful of the elements necessary to be applied in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.

29. As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[55]

    [55] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].

30. Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[56] The learned Deputy President thought this paragraph leads a decision maker to:

    102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…

    …

    103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.

    [my underlining]

    [56] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].

1. The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[57]

   In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.

   [my underlining]

   [57] [2017] FCA 1466 at [76]-[77].

2. The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:

   …[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

   [77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.

   [my underlining]

3. In Afu v Minister for Home Affairs,[58] Justice Bromwich said:

   The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.

   [my underlining]

   [58] [2018] FCA 1311 at [85].

4. The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term or terms for his very serious offending to date, such that he should now be allowed to remain in this country.

5. I cannot come to that conclusion in light of my findings as to:

   (i)The very serious nature of his offending to date;

   (ii)The unresolved question of his risk of re-offending in the realm of child-based offences given the problematic nature by which Dr Palk has been caused to arrive at his findings;

   (iii)The fact that the Applicant’s claims of rehabilitation from heroin addiction have only been apparent in the close confines of criminal custody and/or immigration detention and are yet to be tested in the general community;

   (iv)My assessment of the quite significant risk of substantial physical, psychological and even catastrophic harm to the Australian community were he to reoffend;

   (v)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.

6. I also have regard to the enactment of the Direction which makes it clear that the Australian community would expect that a non-citizen who had committed a sexual offence(s) against a child should be expected to be denied the privilege of remaining in Australia:

   A non-citizen who has committed a serious crime, including a crime of a violent or sexual nature, and particularly against women or children or vulnerable members of the community… should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.[59]

   [59] The Direction, sub-paragraph [6.3(1)(3)]

7. I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.

8. At the Hearing, the Applicant spoke of wanting to return to the community to, in effect, re-establish his life and to re-define his relationships with his immediate and extended family in Australia. To his credit, he has completed a commendable number of vocational courses/programs while in criminal custody/immigration detention.[60] He spoke of wanting to “be there” for his children and grandchildren and otherwise striving to positively participate both in their lives and as a member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[61]

   [60] Exhibit 5, s 501 G Documents, G11, page 77 and, see also, pages 91 -97.

   [61] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.

   Conclusion: Primary Consideration C

9. Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.

   Other Considerations

10. There are five “other considerations” disclosed in the Direction:

    (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.[62]

    [62] The Direction, paragraph [14(1)].

11. I will address each of these considerations, and their respective weights, in turn.

    (a)  Non-Refoulement Obligations

12. There is no suggestion that Australia owes non-refoulement obligations to this Applicant. This other consideration (a) is of no relevance to this decision.

    (b)  Strength, Nature and Duration of Ties

13. There is a ready acknowledgment by the respondent that the Applicant has resided in Australia for some 37 years and that his removal may cause emotional hardship to his family members.[63] As against that, one should have regard to the Applicant’s residential history prior to his incarceration in mid-2015. There is next to no evidence to suggest that prior to his incarceration in 2015, his place of abode in Western Australia meant that he lived closer to his family and that, as a result, they had any significant reliance upon him. Quite the contrary, because, as I understood the evidence, all of the Applicant’s family members residing in Australia do so on the east coast and that none of his family members have ever resided in Western Australia.

    [63] Exhibit 4, Respondent’s SFIC, page 13, paragraphs [54] and [55].

14. The Respondent’s statement of Facts, Issues and Contentions speaks of the Applicant intending to return to Port Hedland were his visa to be returned to him and that this did the Applicant no favours because all of his other family members reside in Queensland.[64] In his evidence at the hearing, the Applicant spoke of “selling up” in Western Australia and using some of those cash proceeds to assist his family members with getting ahead in their lives.

    [64] Ibid, paragraph [55].

15. The Applicant speaks of having six uncles/aunts, ten nieces/nephews and “numerous” cousins in Australia. In New Zealand he has “numerous” uncles/aunts, 18 nieces/nephews and “numerous” cousins. In terms of siblings, the Applicant has seven brothers and two sisters residing in New Zealand.[65] While the Applicant has a number of siblings in
    

    [65] Exhibit 5, Section 501 G-Documents, G 10, page 83.

    New Zealand, in his oral evidence at the hearing, the Applicant spoke of being estranged from those siblings as a result of him notifying some or all of them about his offending in Australia in a genuine effort to “clear the air” with them.

16. To the best of my recollection of the evidence, this estrangement and falling out was confirmed by the Applicant’s sister, Ms Melanie Durham, who gave evidence at the hearing. While Ms Durham’s evidence to the effect that sending the Applicant back to New Zealand “…would be a death sentence…” is probably overstating things, I acknowledge there will be some intra-family challenges for the Applicant to re-establish any relationship(s) with his siblings in New Zealand. As against that, it should be noted the Applicant resided for quite some years in Port Hedland, Western Australia with no sibling or other family members around him.

17. As outlined earlier, the Applicant will be readily able to maintain ongoing contact with family members in Australia by electronic means were he removed to New Zealand. Accordingly, while this Other Consideration (b) carries some weight in favour of the Applicant, that weight is limited and does not out-weigh the Primary and Other Considerations weighing against revocation.

    (c) Impact on Australian business interests

18. I cannot recall any evidence that this Other Consideration is of relevance in determining this Application.

    (d)  Impact on victims

19. The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victim(s). Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on that victim(s). Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.

    (e)  Extent of impediments if removed

20. Paragraph 14.5(1) of the Direction provides that any assessment of impediments faced by a non-citizen if removed from Australia back to their country of origin must take into account:

    (a)  the person’s age and health;

    (b)  whether there are substantial language and cultural barriers; and

    (c)  any social, medical and/or economic support available to them in that country.

21. The Applicant is a middle aged man of 61 years of age. Apart from any likely side-effects and adverse health impacts of his almost 40 year association with illicit substances, of which there is next to no evidence, the Applicant presents as a person of good health for his age. Were he to be returned to New Zealand, there is no evidence of any language or cultural barriers militating against his capacity to re-settle there. Despite an apparent estrangement from his siblings in New Zealand, he nevertheless has a sizeable family in that country. New Zealand has quite similar social, medical and/or economic support to that available to the Applicant in this country such that he should have little difficulty in residing there and maintaining basic living standards of the type to which he is accustomed in this country.

22. The Respondent acknowledges that the Applicant may face some difficulty in re-establishing himself in New Zealand due to his long residence in Australia but there is no evidence that any such hardship would be insurmountable. The Respondent notes that the Applicant also owns property in Christchurch and that he has regularly travelled back to New Zealand during the time he has resided in Australia.[66]

    [66] Exhibit 4, Respondent’s SFIC, page 14, paragraph [58].

23. The movement records appearing in the material[67] indicate that since his arrival in Australia in 1982, he has returned to New Zealand on some 37 occasions. If one deducts the almost four years he has spent in criminal custody and/or immigration detention since 2015, the Applicant has travelled to New Zealand on well more than one occasion in each year he has been in Australia. Thus, while the Applicant may contend he is estranged from his siblings in New Zealand, it cannot be contended that he is estranged from New Zealand.

    [67] Exhibit 5, s 501 G-Documents, G20, pages 163-168.

24. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:

    New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand… (He has previously lived there…) … New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[68]

    [68] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.

25. I agree with the Respondent’s contention[69] and find that this Other Consideration (e) does not weigh in favour of the Applicant and is neutral.

    [69] Exhibit 4, Respondent’s SFIC, page 14, paragraph [60].

    Conclusion: Other Considerations

26. The weight attributable to these Other Considerations can be summarised as follows:

    (a)International non-refoulement obligations: is of no relevance to this consideration;

    (b)Strength, nature and duration of ties: is of limited weight;

    (c)Impact on Australian business interests: not relevant to this consideration;

    (d)Impact on victims: is of no weight to this consideration; and

    (e)Extent of impediments if removed: is of no weight to this consideration.

    Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?

27. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.

28. In considering whether there is another reason to exercise the discretion afforded by

    
    

    s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.

    ·Primary Consideration B weighs moderately in favour of revocation;

    ·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant combined weight I have attributed to Primary Considerations A and C.

    ·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

29. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    CONCLUSION

30. The decision under review is affirmed.

I certify that the preceding 157 (one hundred and fifty – seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[SGD]..............................................

Associate

Dated: 3 April 2019

Date of hearing:	13 March 2019
Advocate for the Applicant:	Ms  Angela Julian Armitage (Counsel)
Solicitors for the Applicant:	Wickham Lawyers
Advocate for the Respondent:	Mr Ashley Burgess (Solicitor)
Solicitors for the Respondent:	Sparke Helmore