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

Fenton and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 764 (6 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0291
Re:Clinton Fenton
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:6 April 2020
Place:Brisbane

The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.
..................................[SGD]......................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
LEGISLATION
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
6 April 2020
THE ISSUE BEFORE THE TRIBUNAL

Mr Clinton Fenton (“the Applicant”) is a 48 year old citizen of New Zealand.[1] He relocated to Australia at the age of 29 on 11 October 2000 with his (then) wife and daughter.[2] He has not left Australia since then. The most recent visa granted to him was a Class TY Subclass 444 Special Category (Temporary) Visa (“visa”).[3]
[1] Exhibit G1, s 501 G-Documents, PG-10, page 66.
[2] Exhibit G1, s 501 G-Documents, PG-10, page 77; G-14, page 97.
[3] Exhibit G1, s 501 G-Documents, G-14, page 97.
On 29 January 2019, the Applicant was convicted of possessing dangerous drugs for which he was sentenced to imprisonment for two years and three months with a non-parole period of eight months.[4]
[4] Exhibit G1, s 501 G-Documents, PG-8, pages 48 to 49.
This led to a decision on, 5 June 2019, by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) to mandatorily cancel his visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test. The Applicant requested a revocation of the decision[5] and on 19 December 2019, pursuant to s 501CA(4) of the Act, the Respondent decided not to revoke its decision.[6]
[5] Exhibit G1, s 501 G-Documents, G-10, page 65.
[6] Exhibit G1, s 501 G-Documents, G-7, pages 35 to 47.
The Applicant lodged an application with this Tribunal on 16 January 2020 seeking a review of the Respondent’s decision (“the decision under review”)[7] pursuant to s 500(1)(ba) of the Act.
[7] Exhibit G1, s 501 G-Documents, PG-2, page 3.
EVIDENCE
The hearing of this application proceeded on 19 March 2020 and the Tribunal received oral evidence from the self-represented Applicant. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[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 and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
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]
[10] Ibid.
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”.
The Applicant was sentenced to a term of imprisonment of two years and three months. What matters in this context is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[11] Accordingly, the Applicant does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[11] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
Before considering whether there is another reason why the decision to cancel the Applicant’s visa should be revoked, it is helpful to set out his history of offending.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
When the Applicant lived in New Zealand, he occasionally used cannabis recreationally.[12] He first tried “ice” at a party shortly before moving to Australia.[13]
[12] Transcript, page 8, lines 1 to 5.
[13] Transcript, page 51, lines 20 to 35.
When he moved to Australia with his girlfriend and their two year old daughter,[14] he left behind his seven year old daughter by an ex-partner.[15] The Applicant had a very close bond with his infant daughter.[16] However, in 2001 his relationship with his girlfriend started to break down and in 2002 she moved away with their infant daughter.[17] He was devastated and he “turned to drugs and alcohol”[18], although he had consumed both recreationally prior to that.[19] In 2003, the Applicant’s sister died of cancer and his “drug addiction escalated and spiraled [sic] out of control”.[20] He used the drugs to dull the pain.[21]
[14] Exhibit G1, s 501 G-Documents, PG-10 and G-14.
[15] Transcript, page 49, lines 10 to 11.
[16] Exhibit G1, s 501 G-Documents, PG-10, page 77; Transcript, page 8, lines 6 to 8.
[17] Ibid.
[18] Exhibit G1, s 501 G-Documents, PG-10, page 77.
[19] Transcript, page 50, lines 10 to 15.
[20] Exhibit G1, s 501 G-Documents, PG-10, page 77.
[21] Transcript, page 8, lines 6 to 10.
The Applicant’s ex-girlfriend moved around and the Applicant lost contact with his daughter. In 2004, the Applicant moved to North Queensland to be close to his daughter, but his ex-girlfriend moved with their daughter to New Zealand. In 2008, the Applicant located his daughter in New South Wales and re-established contact. In 2010, when his daughter was 13, she came to live with him.[22] She stayed with the Applicant until she was 17, at which time she moved in with her partner. The Applicant’s daughter is now 22 years old and lives in Queensland. The Applicant has a close relationship with her and her fiancé.[23] She has provided a letter of support in which she describes the Applicant as a dedicated father and a “respected and loved member of the community”.[24] She says she has come to learn of the Applicant’s struggle with drug addiction, but that he always protected her from that part of his life. She says she is in contact with the Applicant at least once per week, she loves him dearly and she would be devastated if he had to return to New Zealand.
[22] Transcript, page 8, lines 44 to 45.
[23] Exhibit G1, s 501 G-Documents, PG-10, page 77.
[24] Exhibit G1, s 501 G-Documents, PG-13, page 88.
The Applicant is a qualified mechanic.[25] He has lived in the small North Queensland community of Kuranda for 15 years, working as a mechanic – including doing voluntary work for pensioners, community elders and the unemployed after hours – and as a tour guide. He started volunteering at the Kuranda amphitheatre not long after moving to Kuranda.[26]
[25] Exhibit G1, s 501 G-Documents, PG-10, page 77.
[26] Exhibit G1, s 501 G-Documents, PG-10, page 78; Transcript, page 73, line 26 to page 73, line 19.
The Applicant’s elder daughter lives in New Zealand and is now an adult. She does not want a relationship with the Applicant, although he would like one with her. They communicate in some fashion through his younger daughter.[27]
[27] Transcript, page 34, lines 27 to 38.
The Tribunal material contains the following documentary evidence of the Applicant’s criminal and traffic history in Australia and New Zealand: “Check Results Report”,[28] “New Zealand Police in Confidence”,[29] “Driver Licence History”[30] and a set of Queensland Police Service court briefs[31].
[28] Exhibit G1, s 501 G-Documents, PG-8, pages 42 to 51.
[29] Exhibit G1, s 501 G-Documents, PG-8, page 52.
[30] Exhibit R2, Tender Bundle, TB2, page 96.
[31] Exhibit R2, Tender Bundle, TB1, pages 1 to 95.
The Applicant has one traffic conviction in New Zealand, which is for driving in a dangerous manner in 1988. He was 16 years old at the time. At the hearing, the Applicant gave evidence that he thinks he was “doing burnouts” and “just hooning around”.[32] That is his only traffic offence in New Zealand. In June 2000, he was caught in possession of cannabis.
[32] Transcript, page 48, lines 34 to 38.
In October 2000, the Applicant moved to Australia. Only two months later, he was caught drink-driving, without a driver’s licence. He gave evidence that he drove a vehicle several hours after he had consumed alcohol socially. He thought that he would be under the limit by that time. He had a New Zealand driver’s licence, but was unable to locate it when he was pulled over.[33] His blood alcohol concentration was .057.[34]
[33] Transcript, page 22, line 3 to 23, line 5.
[34] Exhibit R2, Tender Bundle, TB2, page 101.
On 20 July 2001, he was again caught drink-driving, and this time with a blood alcohol concentration of .078.[35]
[35] Ibid.
In October 2001, he was found in possession of dangerous drugs (which he says was a “cone” of “marijuana”) and utensils or pipes (which he says was probably a “bong”).[36]
[36] Exhibit G1, s 501 G-Documents, G-8, page 51; Transcript, page 52, lines 5 to 25.
Between October 2001 and January 2006, he was caught driving while disqualified on five occasions.[37] By way of explanation he told the Tribunal:
“And we did road worthies for the auto group auctions up the road and we just had to drive the cars down the service road. And basically, it was a new job, I didn’t want to lose my job. It was a good job. And so I drove and three days before the suspension run out, I got pulled over in a random and then it just snowballed from there. And I kept driving trying to survive. No assistance for the first two years when I came over. So if I didn’t work, I got no money.[38]
[37] Exhibit R2, Tender Bundle, TB2.
[38] Transcript, page 23, lines 22 to 29.
He was later convicted of producing dangerous drugs and possession of “anything used in the commission of crime” during December 2005 and January 2006.[39] He said he was growing “pot” in his backyard and the thing used in the commission of crime was probably a set of scales.[40]
[39] Exhibit G1, s 501 G-Documents, G-8, page 50.
[40] Transcript, page 52, lines 15 to 28.
There is a period between 2007 and 2012 when there are no drug offences,[41] although there is a drink-driving offence in February 2011.[42] When asked about this, the Applicant explained that:
“I started with alcohol and then went to drugs… Alcohol and then moving to the drugs and then trying to get away from the drugs and went back to alcohol. So - and ended up giving up drinking for a while – for quite a few years there and then -and then, yes, ended up going back to drinking but only for a short time and, yes, I don’t drink these days and haven’t drunk for years. Once my daughter came to live with me when she was at the age of 13 I stopped drinking altogether then.”[43]
[41] Exhibit G1, s 501 G-Documents, G-8.
[42] Exhibit R2, Tender Bundle, TB2, page 100.
[43] Transcript, page 8, lines 35 to 45.
The Applicant admits that he struggled with his addiction from not long after he moved to Australia. He said he had felt, at the time, that he had it under control.[44] He “binged” sometime around 2003 when he was not working all the time, but when he moved to North Queensland and obtained steady employment and a “new scene” he “stopped that binge”.[45]
[44] Transcript, page 63, lines 10 to 23.
[45] Transcript, page 63, lines 32 to 42.
This third drink-driving offence involved a blood alcohol concentration of .149.[46] The Applicant said there was a cyclone and he went to rescue some friends who were in trouble, which he conceded “wasn’t a very good idea”.[47]
[46] Exhibit R2, Tender Bundle, TB2.
[47] Transcript, page 8, lines 25 to 28.
Also, in 2011 he was caught exceeding the speed limit by at least 13km/h, and in 2013 he was caught exceeding the speed limit by more than 20km/h.[48] He told the Tribunal he was probably in a hurry to get somewhere, to “get drugs or something like that” and he admitted that his traffic history is “shocking”.[49]
[48] Exhibit R2, Tender Bundle, TB2.
[49] Transcript, page 22, lines 1 to 6.
In 2013, he was convicted of eight offences of receiving tainted property and one offence of possessing tainted property. These arose from a quantity of stolen goods that were found in his possession.[50] He gave evidence that he had stored his tools on the premises of his employer. A fire at that premises had destroyed his tools and much of the premises, and his employer did not have insurance. He said he knew a person, but not very well, who offered to sell him some cheap tools and other equipment. On the first two occasions when he bought these items he did not suspect that they were stolen, but on the third occasion he noticed that serial numbers and markings had been filed off. He should have reported it, but the person who sold it to him was very aggressive and he could not afford to lose the items he had bought with the little money he had.[51] When the police found the stolen property, the Applicant admitted that he suspected some of it was stolen.[52]
[50] Exhibit G1, s 501 G-Documents, G-8; Exhibit R2, Tender Bundle, TB1, pages 10 to 35.
[51] Transcript, page 20, line 18 to page 21, line 11.
[52] Exhibit R2, Tender Bundle, TB1, page 14.
In 2013, he failed to appear in accordance with a bail undertaking and his bail was revoked so that he was held in custody for five weeks.[53]
[53] Exhibit G1, s 501 G-Documents, G-8; Exhibit A4, Applicant’s Further Submissions.
On three occasions, between December 2013 and in January 2017, the Applicant was found in possession of dangerous drugs (methylamphetamine and cannabis). On two of those occasions he also had items related to drug offending including a glass pipe used for smoking methylamphetamine and electric scales.
The Applicant gave evidence that he needed methylamphetamine to get himself up in the morning and get through the day.[54] He was using “a little bit every day”,[55] normally a “point” being 0.1 gram.[56] He normally purchased it in a “half ball” which was 1.75 grams or a “ball” which was 3.5 grams which was cheaper than buying it by the dose.[57] While other users build up a resistance to it and need larger and larger quantities, for example half a gram at a time, the Applicant maintained a steady dose.[58] He said:
“I’ve always been a pretty mellow person and I just had my one dose, so other people would have five times the amount and they’d do what we call fry, it kind of fries their brain or whatever, and some of them become paranoid, violent, or just erratic, you know. You just don’t know what they’re going to do next or whatever.”[59]
[54] Transcript, page 10, lines 20 to 22 and 37 to 43.
[55] Transcript, page 9, line 35.
[56] Transcript, page 10, lines 1 to 6.
[57] Transcript, page 11, lines 5 to 25.
[58] Transcript, page 11, line 5.
[59] Transcript, page 11, lines 42 to 45.
Between June 2015 and May 2017, the Applicant was caught driving without a license on three occasions and exceeding the speed limit by at least 13 km/h on one occasion.
In 2016, he contravened a direction or requirement (to report at a police station).
In November 2017, the Applicant was charged with possession of “dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4” and ultimately convicted of an offence against s 9(b) of the Drugs Misuse Act 1986 (Qld) (“DMA”).[60] The police searched his car and found a bag containing 1.364 grams of methylamphetamine in the console. Hidden behind the radio they found a Tupperware container with four more bags of methylamphetamine in the following quantities:
·1.78g;
·1.966g;
·6.999g; and
·3.461g.
[60] Exhibit G1, s 501 G-Documents, G8, page 48.
The entire quantity totalled 15.569g (with a pure weight of 11.898g).[61] I note that 1.78g is close to the weight of a “half-ball” and 3.461g is close to the weight of a “ball”.
[61] Exhibit G1, s 501 G-Documents, PG-9, Sentencing Remarks.
When he was sentenced, the learned sentencing Judge had this to say:
“Methylamphetamine is a drug of enormous concern in the community. As you know, it has addictive properties, for you have a history of addiction to the drug. It brings, as I assume you know, misery to the user, but worse than that, misery to the user’s loved ones and families. More than that, it has impacts upon people not even associated with the user. For example, it contributes to property crime by those minded to offend in respect of property in order to raise the funds or equity necessary to procure the drug. Worst of all, in some users it invokes a degree of paranoia, aggression and violence, which can result in some quite inexplicable acts of violence against innocent citizens in our community. For all of these reasons, it is inevitable that notwithstanding the court’s sympathy for anyone who struggles with drug addiction, that when that person takes the extra step and is possessed of drugs for a commercial purpose, that they ought not only go to jail but serve a material period of time in jail. This is necessary not merely as a matter of personal deterrence, but also as an act of general deterrence so that those in the community, including those who are addicted to drugs who attempts to take the extra step to become involved commercially in the wicked trade, know the price to be paid and know that they will pay it.
…
Your counsel has advanced a fairly tepid level of concession by you that, against a background where you had a substantial amount after the sale of one of your cars and were intending to buy half ball, the dealer in question was able to make more available and you purchased a larger amount, and through your counsel it was said that your primary intention was personal use, but you accept that there was a prospect that some of the drug bought might have been on sold. As I indicated in submissions, I take a dim view of it than that - I might add not merely by virtue of all that I have mentioned so far, but by perusal of the state of the drug.
The interpretation that you ought be sentenced on the basis that the smaller amount in the console was personal use but the larger amount that was secreted had a commercial purpose, I think is unavoidable and even allowing for the sliding scale of persuasion referred to in the Evidence Act, I am satisfied that the larger amount was possessed for a commercial purpose… As I have characterised earlier, you crossed the Rubicon and went from being a drug addict to one who was prepared to be involved for a commercial purpose, and that is to be regarded more seriously and will attract inevitably consequences, in effect being conceded.”[62]
[Underlining added]
[62] Exhibit G1, s 501 G-Documents, PG-9, pages 61 to 63.

I have underlined certain parts of the above passages to highlight the learned sentencing Judge’s finding that the Applicant possessed the bulk of the methylamphetamine for a commercial purpose. This is relevant to the nature and seriousness of the offending and to the risk of harm to the community should the Applicant reoffend. These matters are relevant to my assessment of whether there is “another reason” why the decision under review should be revoked. The Applicant was sentenced to two years and three months imprisonment with release on parole after eight months.[63]
[63] Exhibit G1, s 501 G-Documents, G-8, page 48.
In his evidence before the Tribunal, the Applicant vehemently denied that he intended to sell any of the methylamphetamine. He stated that the police were cracking down on methylamphetamine in the area at that time and he could not get any from his usual supplier. Given his dependency on the drug, when he was presented with an opportunity to obtain a large supply for himself, and having recently sold his car, he took it. He said it had cost him $4,000 and that he expected it to last around three months. He said sometimes he needed two points in a day, one in the morning and sometimes one in the afternoon or evening.[64]
[64] Transcript, page 11, line 39 to page 12, line 43.
Under cross-examination, the Applicant stated that when he was initially charged, a lawyer had suggested he could get the charge “thrown out”. He had subsequently met with his lawyer and a barrister who advised that that was not possible. He had subsequently spoken for 10 minutes with his lawyer’s assistant while on remand. He said that was the extent of his conversations with his legal representatives and he denied having given instructions that he was planning to sell any of the drugs.[65] In relation to his intentions, he told the Tribunal:
“I - they searched the car, found the stuff I just bought. It was for personal use. And they made all these allegations that I was going to - going to, you know, [cross the Rubicon] or whatever. It was, like, not my intention at all. It was hard enough to get as it was, for personal use. To - why would I want to sell it? I used it every day. It was like why would I buy something that I’m going to take myself, and to get rid of it.”[66]
[65] Transcript, page 66, line 7 to page 68, line 20.
[66] Transcript, page 68, lines 35 to 42.
The Applicant had never been convicted of supplying or trafficking drugs. On the three previous occasions when he was found in possession of methylamphetamine, the quantities were 0.1g, 0.2g and 0.3g,[67] which strongly suggests personal use only. There is no evidence that on those occasions he was found in possession of items that are normally associated with supply such as large amounts of cash, multiple clip seal bags, a ledger of some kind or mobile phone messages indicating drug supply. Nor was any such evidence found by police when they found the large quantity of methylamphetamine in his car. The quantity of drugs was divided into five bags, one of which contained a “half ball” quantity and another that contained a “ball” quantity. That some of it was in saleable quantities might indicate that the Applicant had prepared it for sale to others. However, the Applicant gave evidence that it was already packaged like that when he bought it. There is no evidence before me that the Applicant actually sold any methylamphetamine or had taken preparatory steps to sell it.
[67] Exhibit R2, Tender Bundle, T1, pages 42, 49 and 69.
The recent Full Federal Court decision in HZCP v Minister for Immigration and Border Protection[68] considered whether a Tribunal may make a finding of fact that is contrary to a finding made by a criminal court in the context of a decision by the Minister not to revoke a mandatory visa cancellation. Their Honours were unanimous in their view that where a Tribunal is invited to make a finding that is contrary to a finding that was made by a court in a criminal matter, a heavy onus of proof applies and the Tribunal should exercise extreme caution in making any contrary finding.[69] The majority[70] further held that where the factual finding underpins a conviction or sentence that grounds the decision-maker’s jurisdiction, the Tribunal is not permitted to make a contrary finding of fact. The conviction and sentence in that case did ground the decision-maker’s jurisdiction, because they triggered the mandatory cancellation of the Applicant’s visa under s501(3A) of the Act, leading to the Applicant making representations under s 501CA(3)(b) of the Act thus enlivening the minister’s power under s 501CA of the Act to make the decision under review.
[68] [2019] FCAFC 202.
[69] Paragraph 43(b) where McKerracher J cited with approval a passage by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; per Derrington J at paragraph 150; per Colvin J at paragraph 180.
[70] McKerracher and Colvin JJ.
It is apparent from the passages of the sentencing remarks that I have extracted that the learned sentencing Judge’s finding that the Applicant possessed the bulk of the methylamphetamine for a commercial purpose underpinned the sentence that he imposed. His Honour considered that it warranted a heavier sentence than had there not been a commercial purpose. I respectfully find in accordance with the learned sentencing Judge. Further, considering the Applicant’s history of drug offending up to that point and the circumstances of this offence, I find that it was aberrant behaviour that was highly opportunistic as the Applicant had a large amount of money at his disposal from the sale of his car and a dealer who wanted to offload his supply.
While he was on bail in relation to the above offence, the Applicant failed to appear in accordance with his bail undertaking on three consecutive occasions.[71] He also committed one offence of possessing property suspected of having been used in connection with a drug offence, and he was apprehended for failing to stop at a stop sign and found to have methylamphetamine in his system. With respect to the traffic offence, he said he had not come to a complete standstill at the stop sign because the intersection had very good visibility. He could see any other approaching vehicles from around 80 meters away.
[71] Exhibit G1, s 501 G-Documents, G-8.
Aside from the explanation the Applicant gave for his possession of some 15.5 grams of methylamphetamine, his evidence about the circumstances surrounding the other offences is not controversial and I accept it.
I do not find it necessary to repeat his explanations for the breaches of bail and for contravening a direction or requirement. Those were not challenged by the Respondent, and I accept that there was no sinister intent and no harm resulted to any other person. There are some other offences in the Applicant’s record which at first blush seem significant (possession of a knife in public and possession of an explosive), but are not when one considers that the knife was a Swiss army knife in his glovebox and the explosive was a small firecracker.
Since his release on parole, the Applicant has obtained a provisional driver’s licence and employment.
There are letters of support before the Tribunal from the Applicant’s current employer and three friends. His employer, Mr A, is also a former employer, having employed him for around five years until 2012. Mr A stated that the Applicant went out of his way to help people even in his own time, and he volunteered at numerous community events, but that he had “gone down the wrong track and the drugs have made him his own worst enemy”.[72] He described the Applicant as genuine and trustworthy. He said the Applicant is a member of the local community and has close ties there. A friend of the Applicant, Mr B, provided a letter of support in which he stated that he has known the Applicant for ten years. He stated that the Applicant is an excellent mechanic with a good work ethic. He described the Applicant as an honest and decent person whose only problem is “the drugs”.[73] The other two letters are from a married couple, Mr and Mrs C, who are friends of the Applicant and have known him for 15 years. They tried to help him over the years. Mr C spoke highly of the Applicant, giving an example that the Applicant looked after their home when they went on holiday, respecting their property and caring for their pets. Mr C kept in touch with him during his incarceration. He said that the Applicant genuinely wants a better life for himself and that he and his wife want to help him.[74] Mrs C corroborated the Applicant’s evidence that he lost contact with his daughter when he and his ex-partner separated, and that his sister who was the only family member he kept in touch with in New Zealand, died of cancer in 2003. She described the Applicant as healthy and high functioning when he is drug-free. She recounted many ways in which she and her husband helped the Applicant including preparing his resume and taking him in when he was homeless. She described him as a genuinely good person who goes out of his way to help others, adding that he volunteers at every concert at the Kurunda Amphitheatre by “setting up or doing the drinks or food”. She and Mr C employed the Applicant and she said clients consistently described the Applicant as a “hard worker”, “willing to do overtime”, “dedicated”, “honest” and “reliable”. Mrs C said she and her husband can offer the Applicant a spare room in their home and part-time work.[75]
[72] Exhibit G1, s 501 G-Documents, PG-13, page 91.
[73] Exhibit G1, s 501 G-Documents, PG-13, page 90.
[74] Exhibit G1, s 501 G-Documents, PG-13, page 92.
[75] Exhibit G1, s 501 G-Documents, PG-13, page 94.
The writers of these letters of support each acknowledge the Applicant’s drug problem. They are people who have known the Applicant for several years. Based on these letters of support, I accept that the Applicant is a hard worker who has done volunteer work for many years, even when he was misusing drugs. The evidence of the Applicant’s employer, Mr A, that the Applicant went out of his way to help people in his own time is somewhat corroborative of the Applicant’s evidence that when he worked as a mechanic, he did work in his own time for free for pensioners, community elders and the unemployed. I accept that the Applicant helped others in that way. I accept that Mr and Mrs C are prepared to go to some lengths to help the Applicant abstain from drug use.
I now turn to the assessment of whether there is another reason why the decision under review should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[76]
[76] 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.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, 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.[77]
[77] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[78] and “Other considerations”[79] The Primary Considerations are set out in paragraph 13(1) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[78] Paragraph 13 of the Direction.
[79] Paragraph 14 of the Direction.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note and emphasise the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[80]
“… 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.”[81]
[80] [2018] FCA 594.
[81] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
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 this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of 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)…
i)…
Factor (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature are viewed very seriously. Factor (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant has not been convicted of any crimes of a violent nature against any person.
However, the Respondent contends that he committed an act of domestic violence against a former spouse. The material before me contains a Protection Order that was issued against the Applicant’s (then) spouse in August 2008.[82] The police applied for the order, naming the aggrieved person as the Applicant’s spouse at the time. On the face of the order it states:
“The court is satisfied that the Respondent has committed an act of domestic violence against the aggrieved and that the Respondent is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence.”
[82] Exhibit G1, s 501 G-Documents, PG-8, pages 53 to 59.
The Protection Order contains three conditions that can be summarised as:
(1)be of good behaviour towards the aggrieved and not commit domestic violence;
(2)be of good behaviour towards any named person in the order and not commit an act of associated domestic violence against that person;
(3)a prohibition from going to or entering premises where the aggrieved resides.

I have another document before me entitled “Variation to a Domestic Violence Order”[83] that was issued in October 2008. The Applicant’s (then) spouse is named as the person applying for the variation, and the order was varied to omit condition (3).
[83] Exhibit G1, s 501 G-Documents, PG-8.
The Applicant denies having committed an act of domestic violence against his former spouse, or ever having been violent towards anyone.[84] His evidence is that when he was at his former spouse’s rented residence he became frustrated with the door handle on the bedroom door. The door handle had been faulty for some time, such that sometimes it would not open. The Applicant needed to retrieve his wallet and keys before leaving.[85] He said:
“I’ve gone to go to the bedroom to get my wallet and phone and stuff like that because I’m leaving and I can’t get - you know, the door won’t open and I’m trying and I’m pulling it and I’m twisting, you know, and trying to get the door up and down, jamming it. And, yes, I was just like over it. You know, the amount of times I tried to - mucking around trying to get in there and so I’ve gone bugger this and just kicked the door in and it’s broken that mechanism and the door’s come open. I’ve got my stuff and gone...”[86]
[84] Transcript, page 58, lines 28 to 30.
[85] Transcript, page 6, lines 20 to 24 and lines 37 to 44; page 53, lines 27 to 45.
[86] Transcript, page 55, lines 23 to 30.
He said his former partner was not in the bedroom at the time, and that she was in the kitchen. He said his kicking of the door was directed at the door, not at her. He said the landlord had called the police and instigated the application for the Protection Order.[87] He said he was unaware of this, having left the premises, and was not present when the Protection Order was sought[88] or when it was varied.[89] Regarding the variation of the order, he said that his former partner “went to Mareeba Court and they wouldn’t let her remove it”.[90] He was subsequently charged with wilful damage in relation to the door and convicted of that offence.[91]
[87] Transcript, page 6, lines 20 to 24.
[88] Transcript, page 55, lines 30 to 43.
[89] Transcript, page 58, lines 17 to 18.
[90] Transcript, page 58, lines 14 to 15.
[91] Exhibit G1, s 501 G-Documents, G-8.
There is a document before the Tribunal that purports to be a letter of support from his former spouse, containing an email address and mobile phone number in the signature block, which relevantly states:
“I was married to Mr Clinton Fenton. When my husband and I separated, there was an altercation with the landlord, and the landlord contacted the police.
The police advised me that I should take out a protection order against my husband to prevent further problems, and to appease my landlord. The police also assured me, at that time, that this would not go want to Clinton Fenton’s record, and in fact would never be officially recorded, unless I had to call the police to enforce that protection order.
I never needed to call the police to enforce the protection order, as there were no further problems. Mr Clinton Fenton has not been violent towards me, and in fact we have been on friendly terms since we separated.
I am extremely disappointed to hear that Mr Clinton Fenton now has a domestic violence order recorded against him! The police assured me that this would not happen, as the protection order was never enforced, and there were no further problems.” [92]
[Bold and underlining added]
[92] Exhibit A2, Letter of Support.
The Respondent contends that the Tribunal should prefer the contemporaneous court orders, that evidence a finding by a Magistrate that the Applicant did commit an act of domestic violence, over the Applicant’s evidence and the letter. The court orders are not the only relevant contemporaneous documentary evidence before me. The Applicant’s criminal history shows that the Applicant was convicted of wilful damage arising from the incident, but he was not convicted of any violent offence. There is no evidence before me that he was even charged with a violent offence. I must also take this evidence into account.
I am cognisant that sometimes victims of domestic violence are reluctant to proceed with charges, and to give evidence, against the perpetrator. I am grateful to the Respondent’s solicitor for his careful and robust cross-examination of the Applicant about the circumstances giving rise to, and surrounding, the Protection Order and the variation of that order. However, the evidence the Applicant gave in response to that cross-examination did not, in my view, undermine his version of events.
The Respondent points to the fact that the Protection Order was varied to remove the condition preventing the Applicant from attending his former spouse’s residence, but the first two conditions were left intact. One could infer that the Applicant’s former spouse wanted those conditions to remain in place, because the Applicant had indeed been violent towards her. However, there is no independent evidence before the Tribunal as to what advice – if any - the Applicant’s former spouse was given about varying or revoking the order, what she believed to be her options at that time or the attitude of the Magistrate who varied the order.
The Applicant is 48 years old and has been in at least three serious relationships with women.[93] He has never been convicted of a domestic violence offence, or any violent offence, in Australia or New Zealand. The issuing of a Protection Order is not a criminal matter where rules of evidence and the criminal standard of proof[94] apply, and there are very good reasons for that. Further, the learned Magistrate who issued the order did not have the benefit of hearing evidence from both parties. Nor is it apparent on the evidence whether the Applicant’s former spouse gave evidence or whether the police officer who sought the order relied on information from her or from her landlord. I am not satisfied that the Applicant committed an act of domestic violence against his former spouse. Further, I am not satisfied that he has ever committed a violent crime. Factors (a) and (b) of paragraph 13.1.1(1) of the Direction do not apply.
[93] The mother of his first child who lives in New Zealand, the ex-girlfriend who is the mother of his second child and who relocated to Australia with him and the former spouse who was the subject of the Protection Order.
[94] Beyond reasonable doubt.
Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to have regard to the sentences imposed by the Courts for the Applicant’s crimes. The vast majority of the Applicant’s offences attracted relatively small fines. In January 2014, for the multiple property offences, he was sentenced to imprisonment for six months which was suspended for 12 months. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court. Accordingly, a six month term of imprisonment, with the threat that the Applicant would be made to serve that sentence in custody if he re-offended during the next 12 months, reflects the gravity with which the sentencing court regarded those property offences.
The Applicant did re-offend within the 12 month period. One month later, he was caught in possession of cannabis, methylamphetamine and a pipe. For those offences, he was sentenced to nine months of probation which he completed successfully.
In 2019, the Applicant was sentenced to imprisonment for two years and three months and ordered to serve eight months of that sentence in custody before being released on parole. This is a substantial head sentence and a substantial period of time to serve in custody. The learned sentencing Judge imposed this substantial sentence after taking into account the following factors that favour the Applicant: the Applicant’s guilty plea; his productive work history; the fact that he was assaulted while on remand; and the osteoporosis from which he now suffers.
This factor (d) of paragraph 13.1.1(1) of the Direction weighs convincingly in favour of non-revocation.
Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. In an 18 year period, the Applicant was caught in possession of dangerous drugs on five occasions and caught producing dangerous drugs once – normally with associated offences of possessing paraphernalia associated with drug use. He has one drug-driving conviction.
In addition:
·he committed five breaches of bail and one contravene of a direction or requirement;
·he committed three drink-driving offences between 2000 and 2011; and
·on nine occasions he drove unlicensed or while disqualified.
In its totality, his offending is certainly frequent.
The drug offence in 2017 involving possession of approximately 15.5 grams of methylamphetamine represented a dramatic increase in seriousness in that category of offending, and in his offending over-all, due to the quantity involved. However, I have found that this was aberrant and opportunistic, and I am not satisfied that it represents a trend of increasing seriousness in relation to the Applicant’s drug offending.
The drink-driving offending became more serious each time in terms of the Applicant’s blood alcohol concentration.
I do not consider the property offences to be either frequent or increasing in seriousness given that all eight offences related to one series of transactions in a short period of time.
I do not perceive any trend of increasing seriousness in relation to the breaches of bail or the unlicensed and disqualified driving. However, the persistence with which the Applicant continued to drive when he had no lawful right to demonstrates a disregard for the laws that govern the use of our roads and that adds to the seriousness of his offending.
Given the frequency of the Applicant’s offending as set out above, along with the trend of increasing seriousness in relation to the drink-driving offences, this factor (e) of paragraph 13.1.1(1) of the Direction weighs moderately in favour of non-revocation.
Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending.
There is no evidence that the Applicant’s drink and drug driving caused harm to any person. However, the cumulative effect of repeatedly driving while under the influence of drugs or alcohol is that every instance exposes other members of the community to the risk of serious injury or death, and it is only a matter of time or chance until innocent persons are harmed, potentially catastrophically. The Applicant created that risk on four occasions.
With respect to possession of methylamphetamine and cannabis for personal use, the effect of repeated offending appears to be largely confined to the impact it has on the Applicant. Apart from the drug driving, the Applicant’s drug use does not appear to have contributed to any other offending or harm to others. Further, there is no evidence that the Applicant has repeatedly supplied drugs to others, or that he had done that at all.
The cumulative effect generally of the Applicant’s offending is that it has taken up significant police and court resources.
Overall, this factor (f) weights moderately in favour of non-revocation.
Factor (g) of paragraph 13.1.1(1) of the Direction refers to whether the non-citizen has provided false or misleading information to the Department.
The Personal Circumstances Form that accompanied the Applicant’s request to the department to revoke the decision to cancel his visa contained the question “List all living parents, step-parents, brothers, sisters, and adult children”. The Applicant listed his parents, living in New Zealand, and one adult daughter living in Australia. He did not list his adult daughter who lives in New Zealand.[95] He said under cross-examination “I didn’t realise I’d even left my oldest daughter out” and said it is difficult to fill in forms in prison.[96] However, the question is stated clearly and it is not apparent to me how he could not have realised he had omitted his elder daughter. I do not accept that the omission was inadvertent.
[95] Exhibit G1, s 501 G-Documents, PG-10, page 70.
[96] Transcript, page 41, lines 22 to 23.
Further, in the reasons the Applicant gave for wanting the cancellation revoked he wrote:
“… I have had no contact with anyone in NZ for 15 years and call Australia home. I have lived in Kuranda for the past 15 years my life is there, my friends are there, my work is there and my daughter lives in Australia and I fear she would not be able to visit me if I was sent back to NZ due to financial difficulties and work commitments.” [97]
[97] Exhibit G1, s 501 G-Documents, PG-10, pages 80 to 81.
I am satisfied that this could imply that the Applicant has only one daughter and that she lives in Australia, and that he has no-one in New Zealand.
The Applicant’s familial and social connections in New Zealand are relevant to Other Considerations. The Respondent contends that the Applicant deliberately omitted making any reference to his daughter in New Zealand to give the impression that he had fewer contacts in New Zealand that he does. The Applicant denied this.[98] In any event, the Applicant’s request for revocation was also accompanied by a document from Queensland Corrective Services[99] that mentions his two daughters and that one lives in Australia and one lives in New Zealand. In that sense, he disclosed the existence of his adult daughter who lives in New Zealand. In my view this mitigates his failure to include reference to his daughter in his Personal Circumstances Form. This factor (g) is neutral.
[98] Transcript, page 41, lines 23 to 27.
[99] Exhibit G1, s 501 G-Documents, PG-11, page 85.
I do not consider factors (a), (b), (c), (h) or (i) of paragraph 13.1.1(1) of the Direction to apply in this matter, so they do not require consideration.
Applying the relevant sub-paragraphs (d), (e), (f) and (g) of paragraph 13.1.1(1), I asses the nature and seriousness of the Applicant’s conduct to date weighs moderately in favour of non-revocation.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (noting that the decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date including any escalation in his offending.
The Applicant has committed three offences of driving under the influence of alcohol (the most recent being in 2011), one offence of drug driving and twice he has been caught driving well over the speed limit.[100] He explained the speeding offences as probably being related to his drug use. If the Applicant resumes engaging in that kind of offending, there is a very real risk that he could cause serious or fatal harm to other road users or pedestrians.
[100] By at least 13km/h and 20km/h respectively.
With respect to possession of methylamphetamine for a commercial purpose, as the learned sentencing Judge observed, methylamphetamine causes harm to individuals and the community in a variety of ways including: harm to the persons who become addicted, the consequent anguish of their families, property crime, and violence against members of the community. These impacts are very serious in nature.
There is no evidence that the Applicant’s possession of methylamphetamine for personal use led him to commit other kinds of offences such as stealing or assaults.
Were the Applicant to purchase stolen property in the manner he previously did, it would have very little impact. Doing it repeatedly could well encourage others to commit burglaries and theft, but that is not what the Applicant did.
There does not appear to have been a sinister reason behind the breaches of bail or failure to appear, or the unlicensed/disqualified driving offences. The driving offences indicate an attitude that sometimes it is acceptable to break the law, which is most undesirable, however, there is no readily apparent harm that flows from this type of offending per se.
I find that the nature of the harm should the Applicant engage in driving under the influence, excessive speeding or possessing dangerous drugs with a commercial purpose is very serious and potentially fatal.
It is noteworthy that the harm that I have identified arises from the categories of offending that are related to the Applicant’s misuse of drugs and alcohol.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Unusually in this case, the Applicant is not in immigration detention: he was released on parole in July 2019[101], meaning he has been living in the community for eight months.
[101] Exhibit G1, s 501 G-Documents, PG-15, page 98.
The Applicant gave evidence that he stopped abusing alcohol several years ago when his daughter came to live with him. His most recent drink-driving offence was in 2011, yet there are several subsequent traffic offences – indicating that he continued to drive after 2011. He gave evidence that since being released, he is able to be around people who are consuming alcohol without difficulty and he sometimes has one drink but no more. I accept that he has not abused alcohol in many years and that he does not have an alcohol dependency. I am satisfied that there is a very low risk that he will resume abusing alcohol.
The Applicant gave evidence that he stopped using methylamphetamine when he was incarcerated, has not used it since and he does not have any cravings or desire for it.[102] He described prison as a place he never wants to go again, but he said it was what he needed to get a clear head.[103] He gained a level of insight into his drug dependency and the impact it had on his life. He give the following evidence in that regard:
“Well, most of my criminal history has to do with my drug addiction and so at the end of the day going to gaol was a blessing in disguise. When you’re forced away from the scene and all of a sudden you’ve got that time, it didn’t actually take that long, you know, before my head was out of the clouds and I could think properly and it was like, you know, for years I didn’t think I could ever stop but it was - you know, when you’re forced to have that break and I think you worry about the come down and all that kind of thing and stuff like that and in the end it’s when you’re forced to you’ve got no option. And then as soon as you start thinking clearly three months later it was like yes, what was I thinking, you know.
…
I think before I really got back focused on, you know, and then looked back and seen the mess I’d made. I mean, like my New Zealand record’s there and it is like two charges in 31 years and until I got addicted to the drugs I didn’t have problems.”[104]
[102] Exhibit G1, s 501 G-Documents, PG-10, page 78; Transcript, page 72, lines 2 to 3.
[103] Transcript, page 30, lines 6 to 14.
[104] Transcript, page 7, lines 16 to 33.
He says he feels healthier now, has gained weight, and no longer wants to use drugs because of the negative consequences for him. The Applicant appeared in person. He looked healthy and did not appear underweight. He described the change in his attitude thus:
“Yes. So just needed that time off the drugs to - eight months inside, come out, didn’t want to know about it, don’t want to know about it. Don’t smoke cigarettes no more, put on heaps of weight. Went - gone back to (indistinct) where I used to work.
Working - yes, just having that clear head and looking back on it and just going - look at all that shit. All those hassles I’ve created myself. All that drama, all the money, the fines and stuff like that. It was just like - yes, it’s - yes, it was - and I suppose, because I was older, I think. I’d just had enough of it.”[105]
[105] Transcript, page 24, lines 4 to 14.

Nor does the Applicant want to associate with the people he used to associate with who used drugs. He said the place where he lives and works is out of town, he only associates with friends who do not use drugs, and he has a new phone and SIM.[106]
[106] Transcript. page 27, lines 12 to 14.
The Applicant has employment and on-site accommodation in his local community.[107] He has close friends who have written letters of support. When it was put to him that he had these friends before yet he continued to use drugs, he said they spoke with him about his drug use, but did not push him. However, now they know he wants to stay off the drugs they will support him in that.[108] The commitment of the Applicant’s friends is heartening, however it is not possible to predict with confidence whether they will be successful in helping him to remain drug-free and crime free if he chooses not to. Still, I take into account the support of his friends, his stable accommodation and his employment as factors that, in general, tend to assist a person’s rehabilitation.
[107] Transcript, page 25, lines 2 to 10.
[108] Transcript, page 29, lines 13 to 25.
The Applicant was asked:
“What are you going to do next time there’s some kind of crisis, you know, a relationship breakdown, you lose your job, something terrible that would have previously driven you to use the drugs or alcohol?”[109]
to which he replied:
“Well, I was a bit worried about that. Like, I was worried about, you know, the - because, you know, normally things go all right for me for a while and then they - you know, something would happen or whatever, but, I mean, this deporting thing is as big as it gets, and it hasn’t worried me. Like, I haven’t - you know, I was nervous about today.”[110]
[109] Transcript, page 28, lines 23 to 25.
[110] Transcript, page 28, lines 27 to 31.
The evidence that the Applicant gave about his drug use, and his attitude now, was candid and displayed self-awareness. For example:
“All of the bad things that happened in my life, and stuff like that, all related to drugs.”[111]
…
“They have like - when you first start taking them, everything is - it takes all - like it takes all your worries away, like numbs it, you don’t think about the problems and stuff like that. But over a period of time it reverses around, and it becomes the problem. It’s the thing that - it makes you - you have it and you actually feel worse.”[112]
…
“Yes, yes. But a lot of [my friends] just accepted it because they - I was - it was my battle and because I didn’t get violent on it, or paranoid, or - I only had that small dose, and always worked and stuff like that, yes, they kind of - I could see they, you know, were disappointed…
You know, no one actually grabbed me and turned around and went, oh we are throwing you in rehab or anything like that because I wasn’t - I was one of the ones that could function. I could still work or whatever and stuff like that. So - and I wasn’t a mongrel on it. So - which didn’t really help in the end, I would’ve been better off being a mongrel maybe someone might have thrown me in the rehab or, you know -
But I mean, it’s the kind of thing that you don’t - when you’re on it, it’s like you’ve got your head in the clouds. You can’t think straight, or you can’t - you don’t realise - you don’t look at yourself back and realise what impact it’s having on you and what it’s doing to you. You think you’re fine.”[113]
…
“And I did manage to stop it there for a little while and then yes, things have gone wrong and stuff like that. And it’s - yes, I was still - I didn’t break contact with the people that I - that were in that scene and that’s where I went wrong there.”[114]
[111] Transcript, page 13, lines 47 to 48.
[112] Transcript, page 14, lines 10 to 15.
[113] Transcript, page 14, line 41 to page 15, line 12.
[114] Transcript, page 18, lines 30 to 33.
There is evidence from Queensland Corrective Services[115] that the Applicant was of good behaviour during his incarceration and had no adverse reports. He was given a Low Security classification and transferred to a low security facility. I accept that the Applicant did not use drugs and was of good behaviour during his entire period of incarceration.
[115] Exhibit G1, s 501 G-Documents, G-11.
There is no evidence before me that the Applicant has returned to drugs or re-offended in the eight months he has been back in the community. It seems unlikely that he is using drugs and offending without that coming to the attention of his parole officer or the local police. I am satisfied that the Applicant has not used methylamphetamine or other dangerous drugs, or re-offended, since he was released from prison in July 2019.
If the Applicant is returned to the wider community, he will be on parole until February 2021.[116] His clear understanding is that if he is charged with an offence, he will go back to prison and be deported.[117] He gave evidence that:
“So I don’t want to go back to gaol, and I don’t want to get deported. So there’s only one way to make sure that that doesn’t happen, and that’s don’t do drugs, and don’t have any - don’t break the law.”[118]
[Underlining added]
and
“Like, I mean, if I go back down that road again, then that’s just - my life will turn to shit again.”[119]
[116] Exhibit G1, s 501 G-Documents, PG-15.
[117] Transcript, page 29, lines 30 to 35.
[118] Transcript, page 71, lines 29 to 32.
[119] Transcript, page 71, lines 44 to 45.
The Applicant told the Tribunal that his parole conditions include random drug tests, but he has never been required to do one. Further, he gave evidence that he was initially required to report to his parole officer once per fortnight, but now it is once every two months. He says he does not have a curfew and is allowed to travel interstate to visit his daughter if he obtains permission first. There is a document before me from Queensland Corrective Services that indicates that there are no breaches of parole on his record.
The Respondent makes the point that the Applicant is not engaged in any kind of rehabilitation program. The Applicant gave evidence that he does not feel that he needs to do that because he knows he has no desire to use drugs, but that he did raise it with his parole officer.
The Respondent contends that there is no independent expert evidence before the Tribunal concerning the risk of the Applicant re-offending and that his ability to abstain from offending in an unsupervised environment has not been tested.
Independent expert evidence is especially helpful when an Applicant has not had the opportunity to demonstrate that they will refrain from offending in an un-regulated environment – the wider community – on a long-term basis. In this case, the Applicant has been in the community for eight months without incident which goes a long way to demonstrating his successful rehabilitation. I am cognisant that the Applicant has previously had a lengthy period without any offending; however his evidence was that he was always in the grip of an addiction. However, he has been free of that addiction for 16 months, eight of those in the wider community. Further, there is no evidence that the Applicant suffers from any mental health condition that makes him especially susceptible to drug use or that he suffers from any mental health condition at all.
The Applicant is subject to some supervision and I respectfully agree that this is not the same as being unsupervised. However, his is subject to relatively light supervision: according to his evidence he is not subject to a curfew, he is permitted to leave the State, and his reporting requirements have been relaxed to once every two months. He has the support of the parole system available to him for his remaining 11 months of parole[120] and that is a positive factor. The Applicant does not want to return to gaol or be deported. He understand that “…there’s only one way to make sure that that doesn’t happen, and that’s don’t do drugs, and don’t have any - don’t break the law.”[121] The threats of prison and deportation will remain after his parole ends.
[120] Exhibit G1, s 501 G-Documents, PG-15, page 98.
[121] Transcript, page 71, lines 29 to 32.
One matter that gives me some concern is that the Applicant did not appear to fully appreciate the danger inherent in his drink-driving and speeding offences. However, his efforts to obtain a driver’s license indicate that he no is longer prepared to flout the law by driving unlicensed, and this gives me some comfort that he now has more respect for the laws that govern our roads. Further, he has not abused alcohol for several years, he is committed to staying out of prison and his traffic history shows no traffic offences of any kind since he was released from prison.
The Applicant claims to have reported for parole when required to and there is no evidence to contradict that. I am satisfied that he is more responsible with respect to reporting obligations than he was prior to his incarceration.
Taking into account the matters I have addressed, and in particular my findings that the Applicant has not used drugs or offended while incarcerated or since being released, I am satisfied that there is a low risk that he will return to drug use or re-offend.
I note that the Applicant’s criminal history indicates that when he is using drugs, he normally consumes them himself. His possession of methylamphetamine for a commercial purpose was a deviation from his usual drug offending and he served eight months in prison for it – an experience he was emphatic that he did not want to repeat. I am satisfied that it is unlikely that a return to drug use, if that occurred, would include supply of illicit drugs within the community.
Conclusion: Primary Consideration A
Where there is a low risk of the Applicant re-offending and causing consequent harm to members of the Australian community, this consideration – the Protection of the Australian community - attracts only a slight level of weight.
Primary Consideration B: The best interests of minor children in Australia
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. The Applicant makes no claims in this regard and none arise on the evidence. This consideration is neutral.
Primary Consideration C – The Expectations of the Australian Community
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) 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. Moreover, I should proceed on the basis that the Australian community expects that the Australian Government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
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 the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[122]
[122] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs[123] (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
[123] [2019] FCAFC 185.
In this case, the subparagraphs of 6.3 that have particular relevance are:
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(7) The length of time a person 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.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant arrived in Australia on a final basis when he was 29 years old and he has lived in Australian continuously for 19 years;
·he was first caught offending only two months after moving to Australia (drink-driving and unlicensed driving), although that offending was, in his evidence, inadvertent. He committed his first offence involving dangerous drugs a year after moving to Australia;
·he has committed numerous offences including some that pose a risk of serious or catastrophic harm to the Australian community;
·his traffic offending reflects a level of disregard for the laws that govern the use of our roads and for the safety of members of the community that he wishes to re-enter, although I find that his attitude has improved since he was incarcerated;
·there is a low risk that if he is returned to the wider Australian community, he will re-offend;
·he has been gainfully employed for most of the 19 years he has lived in Australia. He has been described positively in that regard, e.g. a hard worker, reliable, genuine etc;
·he has done work in his own time for people on low incomes. He has been doing voluntary work in his local community for many years;
·since being released he has obtained employment and obtained his provisional driver’s licence; and
·he has been a good father to his daughter in Australia, they have a close relationship, and she says she will be devastated if he is removed from Australia.
Conclusion: Primary Consideration C
The Applicant has undoubtedly breached the trust of the Australian community by committing a serious drug offence and by his repeated offending. I am mindful that a person who has committed a serious crime should generally expect to be denied the privilege of staying in Australia. However, there is a low risk of the Applicant re-offending, and his most serious offending is not so serious that any risk at all of re-offending is unacceptable.
Through his employment and voluntary work, the Applicant has made an active and notable positive contribution to the Australian community. He is currently doing so, and every indication is that he will continue to do so. He has a positive and close relationship with his adult child in Australia who will be adversely affected by his removal to New Zealand.
Normally, Primary Consideration C will favour non-revocation. However in these particular circumstances, I am not satisfied that the Australian community would expect that the Applicant should not hold a visa. Accordingly, Primary Consideration C is neutral.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant is 48 years old and he came to Australia in late 2000. He committed his first traffic offence two months after relocating and his first drugs offence a year after relocating. In accordance with paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to this Other Consideration in those circumstances. Balanced against that, he has spent most of his time in Australia gainfully employed and he has done regular voluntary work in his local community. This attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant has spent 19 years here in Australia and 15 of those in the same small community. He has ties to the community including some long term friendships. He has a positive relationship with his younger daughter and her fiancé. I am satisfied that the Applicant has significant familial and social ties to the Australian community. This weighs in his favour.
The strength, nature and duration of the Applicant’s family and social links with persons in the Australian community warrants a moderate allocation of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e., where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d) does not apply.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant has not lived in New Zealand or visited there in over 19 years. He has parents living there, however he is estranged from them. He says he does not have a relationship with his elder daughter who lives in New Zealand although he would like one.[124] He says he does not have anyone in New Zealand. He does not claim to have any medial or psychological conditions, although there is evidence before me that he suffers from osteoporosis. He is 48 years old and feels too old to make a new start in a different country.
[124] Transcript, page 33, line 38 to page 39, line 40.
The level of medical care and governmental/social support in New Zealand[125] is at or about the same level as that currently available to the Applicant in Australia. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[126] New Zealand is culturally and linguistically similar to Australia. The Applicant is in generally good health, no longer drug-dependant, and he is an experienced mechanic. However, while he has family in New Zealand, he does not have familial or social support in New Zealand. Accordingly, I am satisfied that he would face some short-term difficulty in re-establishing himself in New Zealand.
[125] Section 14.5(1)(c) of the Direction.
[126] Section 14.5(1)(b) of the Direction.

This Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs slightly in favour of non-revocation;
·Primary Consideration B is neutral;
·Primary Consideration C is neutral; and
·Other Consideration (b) weighs moderately in favour of revocation and other consideration (e) weighs slightly in favour of revoking the mandatory visa cancellation decision.
Significantly, I have found that Primary Consideration C - the expectations of the Australian community - does not favour cancellation of the Applicant’s visa. I made that finding taking into account, among other relevant matters, the risk of harm the Applicant poses to the Australian community if he remains in Australia. For nearly twenty years the Applicant’s life has been in Australia where he has been, and is, a productive member of the community. He has very little connection to New Zealand.
Applying the Direction in a holistic manner, considering the totality of the relevant facts and circumstances, I find in favour of revocation. Put another way, Primary Consideration A that weighs slightly in favour of revocation is outweighed by the combination of Other Considerations (b) and (e) that weigh in favour of revocation.
Accordingly, I am satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa be exercised.

I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

....................................[SGD]....................................
Associate
Dated: 6 April 2020

Date of hearing: 19 March 2020

Applicant: In person

Solicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore
“Attachment A – Exhibit List”

Exhibit

Description of Evidence

Party

Date of Document

Date Received by Tribunal

G1

Section 501 G-Documents

R

-

9 JAN 20

R1

Respondent’s Statement of Facts, Issues and Contentions

R

2 MAR 20

2 MAR 20

R2

Tender Bundle

R

-

2 MAR 20

A1

Applicant’s Submissions

A

14 FEB 20

14 FEB 20

A2

Letter of Support – Former Spouse

A

4 FEB 20

14 FEB 20

A3

Letter of Support – Former Employer

A

13 JAN 20

14 FEB 20

A4

Applicant’s Further Submissions

A

9 MAR 20

9 MAR 20

[2020] AATA 764

6 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Date of hearing:	19 March 2020
Applicant:	In person
Solicitors for the Respondent:	Mr Matthew Hawker Sparke Helmore

Exhibit	Description of Evidence	Party	Date of Document	Date Received by Tribunal
G1	Section 501 G-Documents	R	-	9 JAN 20
R1	Respondent’s Statement of Facts, Issues and Contentions	R	2 MAR 20	2 MAR 20
R2	Tender Bundle	R	-	2 MAR 20
A1	Applicant’s Submissions	A	14 FEB 20	14 FEB 20
A2	Letter of Support – Former Spouse	A	4 FEB 20	14 FEB 20
A3	Letter of Support – Former Employer	A	13 JAN 20	14 FEB 20
A4	Applicant’s Further Submissions	A	9 MAR 20	9 MAR 20