Fred-Tutavaha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3982

Fred-Tutavaha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3982 (30 November 2023)

Division:GENERAL DIVISION

File Number:          2023/6622

Re:Hale-Felesi Fred-Tutavaha

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:30 November 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by a delegate of the Respondent dated 7 September 2023 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

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

Senior Member Theodore Tavoularis

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. 99 – where Applicant’s visa was previously mandatorily cancelled but successfully revoked – where ties to minor children, links to the Australian community and impediments outweigh considerations not in favour of revocation –Tribunal finding there is another reason to revoke the mandatory cancellation of the Applicant’s visa – decision under review set aside and substituted.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
PNLB v Minister for Immigration and Boarder Protection (Migration) [2018] AATA 162
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

30 November 2023

1. Mr Hale-Felesi Fred-Tutavaha (‘the Applicant’) is a 32-year-old man born in New Zealand on 20 November 1991. He first arrived here in March 1996. Between May 1996 and July 2011 the Applicant departed from and returned to Australia on multiple occasions.[1] The movement history looks like this:

   [1] R1, pp 85-86.

Date of arrival in Australia	Date of departure from Australia	Time spent in Australia (approx)
23 March 1996	1 May 1998	2 years and 2 months
15 May 1998	7 February 2000	1 year 9 months
21 February 2000	7 December 2000	9 months and 2 weeks
3 February 2001	1 October 2005	4 years and 8 months
12 October 2005	5 December 2005	2 months
18 January 2006	17 January 2008	2 years
13 February 2008	13 December 2008	10 months
1 February 2009	17 July 2011	2 years 5 months
21 July 2011	Did not again depart and has since remained in Australia	12 years and four months
Total Time Spent in Australia (approx)	26 years and 7 months

1. Since his latest arrival in July 2011, the Applicant has remained onshore and therefore it can be safely found he has resided in Australia on a permanent basis since July 2011. Put another way, during the approximate 27 and a half year period from his initial arrival here in March 1996 to the present, he has spent over 26 and a half years in this country. He has spent approximately 83 percent of his life in this country.

2. At the time of his most recent arrival in Australia in July 2011, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’). That Visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) on 16 December 2022 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).

3. The mandatory cancellation of the Applicant’s Visa was the result of him failing the character test[2] because on 26 August 2022 he received a custodial term of imprisonment of 18 months upon a conviction for ‘Dangerous operative of a motor vehicle’.[3]

   [2] Pursuant to ss 501(6)(1) and 501(7)( c) of the Act.

   [3] R1, p 36. Pursuant to s 328 A(1) of the Criminal Code Act 1899 (Qld).

4. As a result of the mandatory cancellation of his Visa, the Applicant was invited to make representations to the Respondent’s Department in order to seek revocation of the mandatory cancellation decision.

5. On 20 December 2022[4] the Applicant made representations to the Respondent’s Department seeking revocation of the mandatory cancellation decision. On 7 September 2023, a delegate of the Respondent decided to refuse revocation of the mandatory cancellation decision.[5] The Applicant was notified of this non-revocation decision on the same day which led to his lodgement of the instant application in this Tribunal seeking a review of the non-revocation decision on 8 September 2023.[6]

   [4] Ibid, pp 111-128.

   [5] R1, pp 16-34.

   [6] Ibid, pp 4-8.

6. For the purposes of these Reasons, the delegate’s non-revocation decision of  

   
   

   7 September 2023 will be referred to as ‘Decision Under Review’.

7. The hearing for the instant review application proceeded before me in-person on  

   
   

   13 and 14 November 2023. The hearing received both oral and written evidence. The written evidentiary material was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.[7] This hearing received oral evidence from:

   ·the Applicant;

   ·Dr Gavan Palk (forensic psychologist);

   ·Ms Jodie Bush (Applicant’s ex-partner’s mother);

   ·Ms Hiria Fred-Tutavaha (Applicant’s mother); and

   ·Ms Keitha Fred-Tutavaha (Applicant’s sister).

   [7] Transcript, p 2, lines 17-33.

   LEGISLATIVE FRAMEWORK

8. 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.

9. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.

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

    (a)whether the Applicant passes the character test; and if not

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

    Does the Applicant pass the character test?

11. It is beyond argument that the Applicant does not pass the character test. I agree with the position taken by the Respondent[8] to the effect that the Applicant’s failure to pass the character test arises as a matter of law.[9] This is because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of 18 months on  

    
    

    26 August 2022.[10] Accordingly, it can be safely found that he does not pass the character test and, as a consequence, cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

    Is there another reason why the decision to cancel the Applicant’s Visa should be revoked?

    [8] R2, p 5, [19].

    [9] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].

    [10] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act; R1, 36.

12. Section 499(2A) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about either the performance of those functions or the exercise of those powers. For present purposes in reviewing a non-revocation decision pursuant to s 501CA(4) of the Act, the Tribunal must have regard to the ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).

13. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

    
    

    non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

    
    

    non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

14. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

15. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

16. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

17. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

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

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

18. I will consider each in turn.

    The nature and seriousness of the Applicant’s conduct to date

19. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)     violent and/or sexual crimes;

    (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    An overview of the Applicant’s offending history in Australia

20. The Applicant’s offending history (in terms of sentencing episodes) runs from 18 October 2016 to 26 August 2022, a period of almost six years. That offending history saw the commission of some 36 offences that were the subject of nine sentencing hearings. In cumulative terms, his offending has been punished by head custodial sentences totalling eight years and 2 months. While not a long offending history, it is nevertheless one that, on any objective view, has been intensely committed. He has received a wide array of other sentences in the realms of (1) fines (on four occasions); (2) probation in lieu of actual custody (on one occasion); (3) suspended sentence (on two occasions) ;(4) conviction recorded but not further punished (on three occasions); and (5) custodial sentences where he spent time in actual custody (on eight occasions).

21. The history contains two additional entries arising from the Applicant’s breach of previously imposed sentencing regimes. First, on 24 June 2019, the Richlands Magistrates Court extended the period of the suspension of a custodial term originally imposed on  

    
    

    14 November 2018. The original sentence carried a suspension period of 15 months. The Richlands Magistrates Court did, on 24 June 2019, extend that period of suspension by six months. Second, on 9 November 2020, the Richland’s Magistrates Court saw fit to fully invoke the terms of the extended period of suspension it imposed on 24 June 2019 consequent upon the Applicant’s breach of the terms of the further suspended sentence.

22. The Applicant has also compiled a not-insignificant traffic history in this country. It is a history that runs (in terms of dates of offending) from 21 March 2008 to 6 September 2021. There are two parts to this history: (1) his actual ‘traffic record’ which runs from

    
    

    21 March 2008 to 6 September 2021; and (2) his ‘non-torum record’ that runs from

    
    

    9 May 2010 to 6 September 2021. The former contains some 40 actual traffic offences. The latter contains six offences. Without delving into the minutiae of the individual offences, it suffices to say that the Applicant has on at least three occasions been convicted of driving when under the influence of drugs and that on at least 10 occasions, he has been convicted for unlicensed driving. The totality of his traffic history is, beyond question, significant.

    Paragraph 8.1.1 Considerations

23. Paragraph 8.1.1(a): the chapeau to paragraph 8.1.1(1)(a) of the Direction stipulates that conduct described in the three sub-paragraphs is viewed very seriously by the Australian Government and the Australian community. There is little or nothing to  cavil with the proposition (and finding) that the Applicant has committed an offence of violence falling within the auspices of paragraph 8.1.1(1)(a)(i) of the Direction.

24. On 18 October 2016, the Brisbane District Court convicted the Applicant on one count of attempted armed robbery and sentenced him to a head custodial term of 3 years. In sentencing the Applicant, the Chief Judge of the District Court of Queensland[11] made the following sentencing remarks:

    ‘HIS HONOUR: Stand up, please. You have been convicted of an offence of attempted armed robbery, as well as a number of summary offences. Plainly, drug abuse is the cause of your offending, as it is the cause of so much of the offending that comes before this court.

    You are 24 years old. You committed this offence when you were subject to a suspended sentence. You were armed with a replica firearm, but that, of course, wass [sic] not known to the victim of your offence, for whom it was undoubtedly a terrifying ordeal.’[12]

    [My emphasis]

    [11] His Honour, Chief Judge O’Brien.

    [12] R1, p 55, lines 1–9.

25. This paragraph 8.1.1(1)(a)(i) therefore grounds a finding that the nature of the Applicant’s offending has been ‘very serious’. I so find. None of the Applicant’s conduct has involved the commission of violent crimes against women or children[13] or family violence, regardless of whether a conviction for such an offence appeared in his record[14].

    [13] Pursuant to paragraph 8.1.1(1)(a)(ii) of the Direction.

    [14] Pursuant to paragraph 8.1.1(1)(a)(iii) of the Direction.

1. Paragraph 8.1.1(b): none of the Applicant’s unlawful conduct has been committed in the realm of causing a person to enter into a forced marriage or him otherwise being a party to a forced marriage.[15] Given the formulation of the character test referable to the instant decision which test the Applicant fails as a matter of law,[16] I am not required to make any finding about whether any conduct of the Applicant forms the basis for a finding that the Applicant does not pass an aspect of the character test that is dependent on my opinion.[17] Further, the material contains no reference to any crime committed by the Applicant during his time in immigration detention.[18]

   [15] Pursuant to paragraph 8.1.1(1)(b)(i) of the Direction.

   [16] See [12] of these Reasons.

   [17] Pursuant to paragraph 8.1.1(1)(b)(iii) of the Direction.

   [18] Pursuant to paragraph 8.1.1(1)(b)(iv) of the Direction.

2. However, the Applicant’s conduct has involved crimes committed against Government representatives or officials due to the position they hold, or in the performance of their duties. First, on 18 October 2016, the Applicant was convicted on two counts of contravene direction or requirement[19] of a law enforcement officer. Second, on 26 August 2022, the Applicant was convicted on one count of obstruct police officer.[20] These convictions speak to the chapeau to paragraph 8.1.1(1)(b)(ii) of the Direction which stipulates that these types of crimes may be considered ‘serious’ by the Australian Government and the Australian community. I am satisfied that this offending militates in favour of a finding that the totality of the Applicant’s unlawful conduct in this country has been of an at least serious, more likely very serious nature. I so find.

   [19] Pursuant to s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld).

   [20] Pursuant to s 790(1)(B) of the Police Powers and Responsibilities Act 2000 (Qld).

3. Paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

   (i)any violent offending he may have committed against women and children;[21]

   (ii)acts of family violence;[22] and

   (iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[23]

   [21] Paragraph 8.1.1(1)(a)(ii) of the Direction.

   [22] Paragraph 8.1.1(1)(a)(iii) of the Direction.

   [23] Paragraph 8.1.1(1)(b)(i) of the Direction.

4. As none of this Applicant’s offending falls within the any of the categories stipulated in the immediately preceding paragraph of these Reasons, I am not precluded from looking at any of his sentences for the purposes of applying the terms of this sub-paragraph. I have earlier summarised the Applicant’s offending history.[24] It suffices to say that for the purposes of the subject sub-paragraph, the Applicant has received sentences involving the imposition of actual custodial time on at least eight occasions:

   [24] See [22] and [23] of the Reasons.

   ·18 October 2016:

   othree years;

   ·9 November 2020:

   o12 months;

   ofour months[25]; and

   ·26 August 2022:

   o12 months;

   ofour months;

   otwo months;

   osix months; and

   o18 months.[26]

   [25] These three sentences were ordered to be served concurrently.

   [26] These five custodial sentences were ordered to be served concurrently.

5. It is well-established that sentences involving the imposition of terms of imprisonment represent the last resort in the sentencing hierarchy.[27] Likewise, the imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offences involved. There are at least 10 other sentences imposed on the Applicant which did not involve custodial time and which involved the imposition of fines (on four occasions), an order for probation, two suspended sentences and, on three occasions, the recording of a conviction with no further punishment. I have earlier referred to the Applicant’s substantial traffic history.

   [27] PNLB v Minister for Immigration and Boarder Protection (Migration) [2018] AATA 162 at [22].

6. Taken in total, it is not difficult to reach a state of satisfaction that the sentences imposed by the courts for the crimes of this Applicant most certainly speak to the level of seriousness of his offending history. I find that those sentences cause this sub-paragraph to strongly militate in favour of a finding that the totality of the Applicant’s offending history in this country has been of a very serious nature

7. Sub-paragraph 8.1.1(1)(d) of the Direction compels an inquiry into the frequency of a
   non-citizen’s offending and/or whether there is any trend of increasing seriousness. First, has the Applicant’s offending been frequent? As mentioned earlier, his offending history runs for barely six years but has involved the commission of some 36 offences that were punished at nine sentencing hearings. This equates to something like the commission of six offences for each year of the history. It also equates to the Applicant finding himself before lawful authority for sentencing on between one and two occasions for each year of that sentencing history. This is plainly frequent offending.

8. Second, is there an any trend of increasing seriousness in the offending history? Such a trend is difficult to find. The difficulty does not arise because the history commenced with low-level offending and did not graduate in seriousness from there. Rather, the difficulty in finding any trend of increasing seriousness is due to the fact that the offending has been of an at least very serious nature from its outset. On 18 October 2016, the Applicant was convicted on one count of attempted robbery whilst armed for which he received a head custodial term of three years. At about mid - point of the offending history, custodial terms in the cumulative amount of 16 months were imposed for convictions for (1) possessing dangerous drugs; (2) stealing; and (3) unlawful use of a motor vehicle. At the final sentencing episode, 42 months (i.e., three and a half years) of custodial time where imposed for convictions for, inter alia, (1) dangerous operation of a vehicle; (2) producing dangerous drugs; (3) receiving tainted property; (5) stealing; (6) breach of bail; (7) possessing dangerous drugs; (8) obstruct police officer; (9) unlawful use of a motor vehicle; (10) attempted stealing; and (11) failure to appear in according with an undertaking.

9. Thus, there cannot be a safe finding about a discernible trend of increasing seriousness in the offending because it has been very serious from its commencement. I am satisfied that the terms of this sub-paragraph strongly militate in favour of a finding that the totality of the Applicant’s offending in this country has been of a very serious nature. I so find.

10. Sub-paragraph 8.1.1(1)(e): the Applicant’s intensively-committed criminal history has produced several cumulative effects. First, it seems clear from a superimposition of the sentencing regimes imposed over his pattern of offending that the Applicant has abjectly failed to experience any form of deterrent effect from sentences that have been imposed on him. As mentioned, a significant head custodial term was imposed for a conviction of attempted robbery whilst armed very early in his sentencing history. Yet this did nothing to dissuade him from further criminal offending. It seems from his history that custodial time has not frightened him but has merely been an interruption to his pattern of illicit substance abuse as a prelude to, or pretext for, his offending.

11. Second, his offending history has a constant and dominant thread involving an apparently unresolved difficulty with his abuse of illicit drugs. I will have more to say about the Applicant’s difficulties with illicit drugs later in these Reasons, but for present purposes it suffices to say that his pattern of offending has involved him (1) consuming illicit drugs; (2) having his moral compass sent severely askew as a result; (3) feeling little or no fear or  inhibition about conducting himself outside the parameters of the law; and (4) receiving sentences for his unlawful conduct which have meant little or nothing to him.

12. Third, his history of committing offences involving the operation and control of a motor vehicle since 2008 has been horrendous. He has compiled (1) seven ‘dangerous operation’ or ‘unlawful use’ of a motor vehicle – type offences which have made their way onto his criminal history. The jail time he has received for his offences has been substantial; (2) he has convictions for 40 traffic infringements on his traffic history record and six traffic infringements on his ‘non-torum history’. This is very significant traffic offending and represents a likewise significant cumulative effect of the Applicant’s offending. I have previously written of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle. [28]

    [28] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].

13. Fourth, there is surely little or nothing to cavil with the proposition and finding that (1) a criminal offending history involving the commission of some 36 offences across about six years that were dealt with at nine separate sentencing episodes; and (2) a traffic history involving some 46 infringements across about 12 years, has cumulatively consumed more than its fair share of the community’s law enforcement and judicial sentencing apparatus. The level of such resources that have been required to detect and regulate the Applicant’s unlawful conduct must surely have been significant.

14. Fifth, another cumulative effect of the Applicant’s repeated offending is that he has failed to develop any measure of respect for the lawful authority governing the Australian community back into which he seeks re-admission. He has little or no respect for the rules, laws and regulations governing the ownership, management and control of a motor vehicle on Australian carriageways. He has little or no respect for a lawfully issued document compelling him to do or refrain from doing something. He has little or no respect for the terms of a grant of bail which facilitates his placement in the community pending finalisation of a given criminal matter.

15. The abovementioned five cumulative effects of the Applicant’s offending thereby cause this sub-paragraph 8.1.1(1)(e) to volubly speak to the very serious nature of the Applicant’s unlawful conduct in this country.

16. Paragraph 8.1.1(1)(f): I have earlier referred to the Applicant’s movement history in and out of Australia.[29] His most recent arrival was on 21 July 2011. His first recorded conviction was in October 2016. There is therefore no possibility of the Applicant providing false or misleading information to the Department in any incoming passenger card about his past offending. Further, I am not aware of the material otherwise demonstrating the Applicant failed to disclose his prior criminal offending (where compelled to do so) in any other document. This paragraph should be put to one side and rendered irrelevant.

    [29] See [1] of these Reasons.

17. Paragraph 8.1.1(1)(g): the material contains clear reference to the Applicant reoffending after being formally warned, in writing, about the consequences of further offending in terms of his Visa status to remain here. This is the relevant sequence:

    ·by letter dated 23 April 2018, the Respondent’s Department told the Applicant his Visa had been mandatorily cancelled consequent upon the criminal history he had compiled in this country;[30]

    ·there is no question the Applicant received this letter because he signed for it.  A copy of that written confirmation appears in the material confirming that he received this letter on 24 April 2018;[31]

    ·based on representations made by the Applicant, the Respondent’s Department did, on 22 January 2019, decide to revoke its decision (made on 23 April 2018) to mandatorily revoke the Applicant’s Visa. A copy of this letter reinstating the Visa appears in the material;[32]

    ·there is no question about the Applicant’s receipt of this reinstatement letter. The material contains his signed receipt for it on 22 January 2019;[33] and

    ·this reinstatement letter contains the following warning:

    ‘Warning: if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds’.[34]
    

    [30] R1, pp 77–80.

    [31] R1, p 81.

    [32] Ibid, pp 82-83.

    [33] Ibid, p 84.

    [34] Ibid, p 82.

    [Bold in original]

18. Following reinstatement of his Visa in January 2019, the Applicant went on to commit 31 offences in this country that saw him before lawful authority for sentencing on at least seven separate occasions. His offending post reinstatement of his Visa attracted custodial punishments in the cumulative amount of 60 months or five years. In other words, he compiled this offending history after receipt of the warning contained in the reinstatement letter. There is no other finding but that this sub-paragraph 8.1.1(1)(g) must be found to militate very strongly in favour of a finding that the totality of the Applicant’s offending in this country has been of a very serious nature.

19. Paragraph 8.1.1(1)(h):

    the Applicant initially came to Australia in March 1996 as a

    
    

    five-year-old. Although he has returned to New Zealand on multiple occasions, there is no reference in the material to his commission of offences in his country of origin (New Zealand) or elsewhere other than Australia. This sub-paragraph can be put to one side and rendered irrelevant for present purposes.

    Conclusion about the nature and seriousness of the Applicant’s conduct

20. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

21. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

22. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

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

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account

    (i)     information and evidence on the risk of the non-citizen re-offending; and

    (ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

23. The Applicant’s offending history is multi-faceted which means that a broad range of harms may befall future victims in the Australian community if he were to reoffend. Recommission of violent offending by him could quite conceivably result in palpable physical and/or psychological harm to those victims. Violent offending resulting from the offender’s moral compass being dominated by illicit substance abuse also carries with it the conceivable consequence of catastrophic harm to a victim.

24. Further offending by this Applicant will again consume an inordinate amount of the community’s policing/law enforcement and judicial sentencing apparatus. The commission of further property offences would result in measurable material harm to victims of such offending who unquestionably have a right to the quiet use and enjoyment of the property they have worked hard to acquire. The commission of further production-type of offending will contribute to the dissemination of illicit substances into our community which will adversely impact consumers of those drugs; those around them responsible for their care; and the communities public health care apparatus.

25. I have earlier referred to the Applicant’s extensive traffic history. Recommission of this type of offending will unquestionably expose other road users to significant physical, psychological and even catastrophic harm. Having regard to the nature and extent of the Applicant’s unlawful conduct in this country, I am satisfied that recommission of any part of it has the potential for occasioning of physical, psychological, measurably material and even catastrophic harm to its victims.

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

    Lay / non-expert evidence

26. The Applicant provided both oral and written evidence to the instant hearing. His written statement, dated 30 October 2023 appears in the material.[35] He attributes ‘poor mental health’ as a feature of his offending. He talks about having ‘…taken the correct steps to resolve my mental health issues, including tackling my illegal substance abuse and current situation. I am currently completing relevant courses and receiving drug and alcohol counselling as well as counselling for my past trauma and abuse.’[36]

    [35] A1.

    [36] Ibid, p 2, [17].

27. He accepts responsibility for his unlawful behaviour[37] and expresses extreme remorse and regret for what he has done and makes no excuses for it.[38] He talks about ‘personal deterrence’ leading him to an understanding about the impact of his offending on his own family, his victims, the law enforcement and judicial apparatus of the community.[39] He claims to now ‘…realise the gravity of my actions and understand the repercussions, which have led to my incarceration, visa cancellation and detention.’[40]

    [37] A1, [24].

    [38] Ibid, p 3, [27].

    [39] Ibid, pp 3-4, [32].

    [40] Ibid, p 4, [33].

28. He says  he has taken steps to rehabilitate himself and that he is ‘…learning everyday about managing my anger, depression, anxiety and past substance abuse issues.’[41] He does not dispute the nature and extent of his criminal offending but suggests that he had ‘…provided sufficient evidence that the offences were an out of character occurrence…, due to the abovementioned factors.’[42] Those factors comprise the abovementioned anger, depression, anxiety and past substance abuse issues.

    [41] Ibid, p 4, [38].

    [42] Ibid, [41].

29. The Applicant then makes a list of courses he has completed which is stated thus:

    ‘1. Drug and alcohol abuse 101

    2. Basic Parenting 101

    3. Stress management

    4. Understanding addictions

    5. Anger management 101

    6. Positive parenting techniques

    7. Building self esteem 101

    8. Goal setting

    9. Confidence building’[43]

    [43] Ibid, p 5, [45].

30. What then follows in his statement is a sequence of paragraphs[44] each of which is identically structured such that the Applicant makes initial mention of a given course he has completed and then inserts on a ‘cut and paste’ basis whatever ‘Learning Outcomes’ are attributable to each particular course. These ‘Learning Outcomes’ seem to be generic statements that do not necessarily tell us very much about what the Applicant actually took from, or otherwise experienced as a result of, undertaking these courses.

    [44] Ibid, pp 5-10, [46]-[54].

1. Later in his statement the Applicant refers to having:

   ‘..undertaken other rehabilitation. For example, I have commenced counselling with a psychologist to address my criminogenic needs and manage my symptoms. I will be undertaking on-going consultations in future, including in the community if I am released. Given that my psychologist can provide me counselling face to face, over the telephone or zoom, I can access ongoing treatment from him wherever I live in Queensland.’[45]

   [45] A1, p 10, [55].

2. In terms of additional programs, the Applicant says he has engaged with or participated in:

   ·Smart Recovery Program meetings which ‘…offer a supportive environment to achieve behaviour change goals around any behaviours of concern including alcohol and illicit drugs.’;[46]

   ·the Lives Lived Well Program ‘…by participating in day rehabilitation meetings…’;[47]

   ·the SANE Program which is ‘…a program for people with recurring, persistent or complex mental health issues and trauma, and for their families, friends and communities.’[48]

   [46] Ibid, [56].

   [47] Ibid, [57].

   [48] Ibid, pp 10-11, [58].

3. In terms of rehabilitation generally, the Applicant says ‘I am committed to future rehabilitation. I really am trying to make changes in my life to be a better person. I have been [in] remission from drugs since early last year.’[49] He refers to currently being ‘…on the opioid substitute program and intend to gradually come of it with the help of my doctor.’[50]

   [49] Ibid, p 11, [59].

   [50] Ibid, [61].

4. Finally, the Applicant appears to have come to the realisation of the existential threat to his Visa status where he to resume offending upon a return to the Australian community:

   ‘I understand the consequences of reoffending if I am released. I understand if I were to reoffend, I will never be given another chance to stay in the Australian community. Any further offending will result in cancellation of my visa again and as a consequence deportation to a life without my family in New Zealand.’[51]

   [51] A1, pp 11-12, [64].

5. The Applicant also provided oral evidence. At the commencement of his evidence, I caused the Applicant to refer to several of his statements that appear in the material. Those documents comprised (1) his abovementioned written statement made on

   
   

   30 October 2023;[52] (2) his Personal Circumstances Form (‘PCF’);[53] (3) a letter appearing in the material that is dated 11 April 2023;[54] (4) a letter of apology (dated 23 June 2023) addressed to ‘Dear Victim’s[sic]’;[55] and (5) a letter addressed to the Respondent’s Department dated 28 June 2023.[56] With reference to each of these documents, the Applicant confirmed their respective contents as true and correct and otherwise said that he had no changes to make to any of them.[57]

   [52] A1.

   [53] R1, pp 111-128.

   [54] Ibid, pp 129-131.

   [55] Ibid, pp 132-133.

   [56] Ibid, pp 134-138.

   [57] See generally, Transcript, p 4, lines 32-47; p 5, lines 1-46; p 6, lines 1-42.

6. The Applicant was then cross-examined by the Respondent’s representative. At the commencement of this part of the evidence, the Applicant squarely accepted that ‘drug addiction has been the main reason behind his offending’.[58] He did not appear to cavil with or artificially dispute any of the facts and circumstances of his past offending as they were put to him during cross-examination.

   [58] Ibid, p 39, lines 8-10.

7. The various rehabilitative programs the Applicant said he had completed were put to him during cross-examination and he (1) confirmed that he had done them and (2) to the extent he could, he spoke in lay terms about the benefits he derived from them. For example, when referred to the ‘DO IT’ program he said ‘I seeked [sic] out help myself with the counselling and I just wanted to better myself, that’s all. And I feel a lot better now than I was before.’[59] By way of further example the Applicant said that he derived a benefit from rehabilitation because ‘….I just didn’t know how to deal with my emotions.’[60]

   [59] Ibid, p 45, lines16-18.

   [60] Transcript, lines 23-24.

8. He was taken to the abovementioned assessment of the Queensland Corrective Services Commission (‘QCSC’) dated 29 August 2022 which gave him a recidivist risk score of 19 out of a maximum recidivist risk figure of 22 and was asked whether he had any comment to make about that assessment. He responded with this:

   ‘--Yes. I do. About that, that's because I've returned back to prison. That's why we're at high risk. When you get sent into a prison you get assessed as a high risk, and if you can that [sic], I was reduced down to a low because I was set [sic] to a farm.’[61]

   [61] Ibid, p 45, lines 34-37.

9. The Applicant’s mother has provided a written statement dated 12 October 2023 which appears in the material.[62] She says:

   ‘I really don't know why my son ended up being an addict, leading a life that would take him to darkness and shame. All I can talk about today, is that [the Applicant] is a changed man, 2022 [Child A] was born, and this has been the beginning of [the Applicant]’s new journey, to address his addictions, and turn his life away from the only life he had known.’[63]

   [62] A8.

   [63] Ibid, p 1.

10. She believes that the Applicant has been ‘…brave in confronting his behavior and understanding what triggered his actions to rely on the life of drugs, the steps he has taken shows me that he is prepared to do what it takes to live a life worthy to be a father figure that his daughter [Child A] can rely on in her future.’[64]

    [64] A8, p 2.

11. The Applicant’s mother is of the view that the birth of Child A has definitely changed the Applicant’s ‘…heart and mind to be a better version of himself…..A new respect has been shown by [the Applicant], he now appears to have a purpose in his life that includes his daughter.’[65] The Applicant’s mother acknowledges the substantial list of the Applicant’s convictions that he says that he ‘kept that life separate from me.’[66]

    [65] Ibid.

    [66] Ibid, pp 2-3.

12. The Applicant’s mother also provided oral evidence. At the commencement of her evidence, the Applicant’s mother identified her abovementioned written statement and confirmed that she was content with what it contained and that she had no changes to make to it.[67] The Respondent’s representative did not have any questions for the Applicant’s mother by way of cross-examination.[68]

    [67] Transcript, p 56, lines 17-27.

    [68] Ibid, line 34.

13. I then put certain questions to her during which she confirmed that:

    ·her other son (not the Applicant) was her primary carer;[69]

    ·if the Applicant receives his Visa as a result of this proceeding, he will be residing with her at Redcliffe, Brisbane;[70]

    ·the Applicant will commence work with his cousin in the cousin’s roofing business;[71] and

    ·the Applicant has been offered voluntary work at the Church she attends which is the Redcliffe Uniting Church.[72]

    [69] Ibid, lines 41-42.

    [70] Ibid, lines 43-45.

    [71] Ibid, p 57, lines 4-7.

    [72] Ibid, lines 5-9.

14. I asked her about the extent of her knowledge of the Applicant’s difficulties with illicit drugs and the following transpired between us:

    ‘SENIOR MEMBER: Now, you're aware, aren't you, that in the past your son, the applicant in front of the tribunal, has had quite serious difficulties with illicit drugs?

    APPLICANT’S MOTHER---Yes.

    SENIOR MEMBER: You're aware of that?

    APPLICANT’S MOTHER: ---Yes.

    SENIOR MEMBER: And in the past did you tell him – I'll presume the answer will be yes – but did you tell him to stop taking the drugs and to get that problem under control. Well you knew he had a problem. You knew he had a problem?

    APPLICANT’S MOTHER: ---I knew he had a problem.

    SENIOR MEMBER: All right. Did you ask him to try and fix the problem or get treatment for it?

    APPLICANT’S MOTHER: ---I can't say that I actually did.’[73]

    [73] Transcript, p 57, lines 16-27.

15. In the event the Applicant returns to the community and resides with her at Redcliffe, she confirmed she would not tolerate the Applicant using alcohol or drugs in her home. This is because of her acknowledgement that his difficulties with drugs have been the primary causative agent behind his past offending:

    ‘SENIOR MEMBER: All right. And would you agree that much of his past criminal offending has been the result of his difficulties with drugs? Would you agree with that?

    APPLICANT’S MOTHER: ---Yes.

    SENIOR MEMBER: You would? All right. If he comes back to live with you at Redcliffe, what can you do to keep an eye on him in terms of a possible return to using illicit drugs? What would you do?

    APPLICANT’S MOTHER: ---Well I've always (indistinct) made my house a place where no alcohol or drugs are to be used. It's something that I've spoken about to all members of my family, that it's a safe space and avoid to have it in my home.

    SENIOR MEMBER: Good. And you've told Fred [the Applicant] that, your son?

    APPLICANT’S MOTHER---Yes.’

    SENIOR MEMBER: He knows that?

    APPLICANT’S MOTHER:---Yes.’ [74]

    [74] Ibid, p 57, lines 34-47.

    Expert or independent evidence

16. The material contains reference to some recidivist risk testing conducted by the QCSC’ on 29 August 2022.[75] In short order, the QCSC assessed the Applicant to represent a recidivist score of 19 out of 22 where 22 represents the highest risk of reoffending. In terms of the Applicant’s Substance Abuse, the QCSC found the Applicant:

    [75] R3, pp 165–175.

    ·first consumed alcoholic beverages at age 15;

    ·commenced using ‘Amphetamine type stimulants Daily or almost daily’ from age 14;

    ·used drugs by injection;

    ·used drugs for a longer time than planned or intended;

    ·increased the amount of a drug he was taking so that he would get the same effects as before;

    ·spent a lot of time getting, using, or recovering from using drugs;

    ·allowed his drug use the interfere with and/or overtake his work commitments and family commitments;

    ·had been using amphetamine on the weekends and it eventually progressed to daily intravenous use causing him to consume two grams of the drug per day requiring and expenditure of $1000 per week;

    ·was selling as well as buying illicit drugs to feed his drug habit;

    ·had been solely dependent on the drug from the age of 18 until the age of 28;

    ·[as of August 2022] he had been drug free for six months; and

    ·had a fleeting involvement with cocaine use but that it was not an addiction and that he had not used cocaine in the last 12 months – that is, in the 12 months prior to August 2022.[76]

    [76] Each of these dot-point items are taken from R3, p 168–169.

17. The QCSC concludes this part of the report with this commentary:

    ‘Mr Fred-Tutavaha advised that he started sniffing solvents/inhalants including glue and paint when he was 11 years old. He stated he had learned sniffing through association with older peers and thought he would try it and then followed the idea of how it made him feel good. He stated he was using inhalants until he was at the age of 15. By then, he was introduced to a "heavier stuff", which he then halted and substituted his use to 'ice'. He indicated at the time, using illicit substance was a normalised behaviour. 

    Mr Fred-Tutavaha reported that he was heavily reliant on the substance as a way of coping/dealing his personal issues in the past.

    Substance abuse is considered a risk factor.[77]

    [My emphasis]

    [77] R3, p 169.

18. In terms of an overall assessment summary, the QCSC report discloses the following:

    ‘Assessment Summary

    …

    ‘The assessment has identified Employment, Substance abuse and Mental Health as areas of HIGH risk. All other matters were assessed as LOW risk.

    Mr Fred-Tutavaha has not developed any significant prosocial, appropriate or effective coping mechanism to utilise when in times of distress, negative life events or period of low moods. As a result of substance abuse addiction being normalised behaviour for Mr Fred -Tutavaha when he was growing up, he has engaged in problematic behaviours to manage these times and this resulted in unregulated/management behaviours. He acknowledged that his substance abuse had impacted on his ability to think consequentially.

    Precipitating factors that may trigger his offending behaviour includes his substance abuse namely ice and mental health. There is correlation between increased substance abuse and poor mental health.

    Perpetuating/maintaining factors include Mr Fred-Tutavaha's substance abuse, negative automatic thoughts and poor problem-solving skills.

    Protective factors:

    Mr Fred-Tutavaha's close connections with his family and is receiving significant family support.

    Mr Fred-Tutavaha would benefit from engaging with a psychologist to address identified risks and gain insight, perspective and skills to manage his issues and not resorting to illicit substance or criminal activity. It is noted he is currently engaging Drug Arm counselling’.[78]

    [78] R3, p 174.

19. Dr Gavin Palk is a Forensic Psychologist, Barrister-at-Law and Senior University Lecturer and Senior Research Fellow with 30 years of experience in the assessment and treatment of substance users and violent offenders. He provided both oral and written evidence to the hearing before me. His written report[79] is dated 7 November 2023 and is thus contemporaneous with the instant hearing. To facilitate his written report, Dr Palk conducted ‘Clinical interviews [with the Applicant] via phone on 11^th September 2023, (about 45 Minutes) 22^nd September (about 30 minutes), 7^th November 2023 (25 minutes) and email correspondence’.[80]

    [79] A2.

    [80] Ibid, p 2, [1.11].

20. Dr Palk reports that the Applicant ‘… indicated he accepted full responsibility for the offence and that he was sorry for the offence’.[81] Dr Palk took a varied history from the Applicant. He summarised the circumstances in which the Applicant came to abuse illicit drugs in these terms:

    ‘3.5 He says when he was aged eight years of age, he was [nature of offending redacted] by a neighbour. He says the neighbour was aged 19 years and the neighbour’s mother instigated the [nature of offending redacted] . He says the  [nature of offending redacted] occurred over a six-month period.

    3.6 He recalled at about the age of 8 years he commenced sniffing paint and at the age of 11 he was consuming alcohol and cannabis and at 12 years he was using ‘ice’ (methylamphetamine). He attributes his drug use to trying to cope with the [nature of offending redacted]. He says he told no one about the [nature of offending redacted] until recently and he is now undergoing counselling.’[82]

    [81] Ibid, p 3, [2.1].

    [82] A2, p3, [3.5] – [3.6].

21. Dr Palk applied a number of psychometric assessments to gauge the level of the Applicant’s recidivist risk.[83] The overall impression that Dr Palk took from that testing was that they ‘…indicate his [the Applicant]’s future risk is in the high range if he returns to substance use. His risk could potentially remain low if he implements the relapse prevention strategies he has leant [sic] and abstains from alcohol and illicit drug use’.[84] In terms of factors that could now be said to have been behind the Applicant’s offending, Dr Palk said:

    ‘6.10 The nature of the offences and the circumstances of his offending indicate his offending was opportunistic and situational. The key attributing factors for the current offences are directly related to Mr. Fred-Tutavaha’s: impulsivity and poor behavioural controls due to substance misuse and mental health concerns.’[85]

    [83] Ibid, p 2, [1.11].

    [84] Ibid, p 8, [6.4].

    [85] Ibid, p 9, [6.10].

22. In terms of an ultimate finding about the Applicant’s recidivist risk, Dr Palk opined as follows:

    ‘6.11 Mr. Fred-Tutavaha’s risk of reoffending is currently low as his substance dependency is remission and his risk can remain low if he continues to implement the rehabilitation strategies he has learnt and refrain form [sic] alcohol misuse and use of illicit substances when he is released into the community.’[86]

    [My emphasis]

    [86] Ibid, [6.11].

23. Dr Palk thought the Applicant met the DSM-5[87] criteria for post-traumatic stress disorder ‘…due to his childhood [nature of offending redacted] and a substance use disorder (currently in remission)’.[88] His report concludes with the following:

    ‘9.8 He accepts his offending was serious and regrets the offending and is determined to not re-offend. He appears genuinely remorseful and is committed to not re-offending and living a pro-social life motivated by the birth of his daughter. Mr. Fred-Tutavaha has been assessed as being a high risk of re-offending, if he returns to using substances. He is currently considered to be a low risk, particularly if he abstains from alcohol and illicit substances continues to cooperate with recovery programs and trauma counselling.’[89]

    [My emphasis]

    [87] Diagnostic and Statistical Manual of Mental Disorders (DSM-5, 2013). American Psychiatric Association. USA.

    [88] A2, p 11, [9.6].

    [89] A2, p 11, [9.8].

24. Dr Palk also provided oral evidence to the instant hearing. He commenced his evidence with identification of the report he prepared on 7 November 2023[90] and confirmed that he had no changes or amendments he wanted to make to it.[91] Dr Palk was also cross-examined by the Respondent’s representative. Dr Palk was taken to the portion of his report wherein he says that the Applicant’s substance use disorder was currently in remission. He was asked to explain what he meant by the words ‘in remission’ and replied in these terms:

    ‘MR KYRANIS: And why did you say in remission? What does that signify?

    DR PALK: ---Well remit – well remission just means – look, I guess, if you look at the medical sciences you never cure the cancer. They'll always say, yes, he's responded to chemotherapy or treatment and it's in remission and it could come back. I mean we – in science you just work on that basis. In other words, once an alcoholic, always an alcoholic. Once a substance dependent, your risk is higher of returning to it and you've got to keep managing that – those relapse prevention. So he's currently – he's simply in remission because he's not using any substances apart from those medically managed which is – which helps keep him – which assist in keeping him in remission or takes away the craving for illicit or illegal substances, or manages it in a regulated way, I guess. So that's what we mean by remission. It just means that at – currently he's not using any illicit substances or abusing alcohol or illicit substances.’[92]

    [90] See generally, Transcript, p 69, lines 30–39.

    [91] Ibid, p 70, lines 4–5.

    [92] Ibid, p 71, lines 28-40.

25. Dr Palk was taken to an assessment conducted on the Applicant during his time in immigration detention which resulted on him being placed on the Suboxone program as a means of weening him off methylamphetamine use. Dr Palk said that if the Applicant followed the Suboxone program, ‘… his risk is going to be significantly reduced’:

    ‘MR KYRANIS: So if he was using Suboxone in January this year, and you say that [sic]that drug is akin to methylamphetamine, and he was using it not in a way that was prescribed to him, he got it somewhere else by other means through the gaol, does that not give you concern about what the applicant may do if he's released into the community in terms of relapsing into drug use if he was using it in the gaol?

    DR PALK: ---Well he only used it once in gaol and now he's being medically managed. The difference is being medically managed and not double-dipping. I mean if he complies with treatment and he's medically managed, which he currently is, it should take away all his cravings. It should keep him calm. It should help him able – help him able to concentrate, maintain a working job, which he always has anyway. So that's the idea of being medically managed. When it's not medically managed, yes, dangerous and, yes, there are drug addicts who double dip. In other words, they get prescribed marijuana or prescribed Suboxone and they go out and get – take illegal substances and drink alcohol. They're just adding to their woes and causing – it undermines the treatment. But, yes, if he's complying with his medical doctors and also attending, you know, group treatment or treatment with psychologists at the same time to help him manage his psychological stressors then, yes, his risk is going to be significantly reduced.’[93]

    [93] Transcript, p 72, lines 21-39.

1. I feel compelled to explain the rationale behind how the respective weights I have allocated to each relevant component of the Direction have produced the within decision. I commence by saying that the ultimate outcome in this matter, either way, has always been (to my mind), quite finely balanced. The Applicant’s criminal offending in this country has been very serious and the Australian community has every right to expect he should not get a visa to stay here. His Visa has been cancelled once then restored to him. He was warned to stop offending and failed to do so which resulted a second mandatory cancellation of his Visa. He has come to this Tribunal seeking, for a second time, the setting aside of the mandatory cancellation of his Visa as a result of his unlawful conduct in this country.

2. As against that, the Applicant has lived in this country for 83 percent of his life and, while he has family in New Zealand, it is obvious that his most significant and well-developed ties are to people in this country. The tipping point for the outcome of this matter is, to my mind, the best interests of Child A. Ms Bush confirmed that her daughter and biological mother of Child A has effectively disqualified herself from any active primary parental role. Child A has just turned one. Removing the Applicant to New Zealand could, on the evidence before the Tribunal, quite realistically consign Child A to never receiving primary parental care and nurture from either of her biological parents. This is not a burden Child A should be compelled to bear. Her best interests have led me to a conclusion that the Applicant has, at last, come to his senses and realised the crucial importance of being a present and providing father to Child A which can only result from him being responsible and law abiding resident of this country.

3. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.

   DECISION

4. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by a delegate of the Respondent dated 7 September 2023 and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 214 (two hundred and fourteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate:

Dated: 30 November 2023

Dates of hearing:	13 and 14 November 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mr Jake Kyranis (Special Counsel)
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	15 September 2023
R2	Respondent’s Statement of Facts, Issues and Contentions	16 October 2023	16 October 2023
R3	Respondent’s Tender Bundle	Various	16 October 2023
R4	Respondent’s Supplementary Tender Bundle	Various	8 November 2023
APPLICANT SUBMISSIONS
A1	Applicant’s signed statement	30 October 2023	1 November 2023
A2	Expert Report by Dr Gavan Palk	7 November 2023	8 November 2023
A3	Applicant’s relapse prevention plan	Undated	26 September 2023
A4	Bundle of course completion certificates	Various	Various
A5	Bundle of text message screenshots and photos	Various	Various
A6	Letter of support from Liam Cavanough (Drug ARM Counsellor)	14 September 2023	2 October 2023
A7	Letter of support from Jodie Bush	Undated	11 October 2023
A8	Letter of support from Hiria F Tutavaha	12 October 2023	13 October 2023
A9	Letter of support from Keitha Fred-Tutavaha	11 October 2023	13 October 2023
A10	Letter of support from Ezra Fred-Tutavaha	12 October 2023	13 October 2023
A11	Letter of support from Robert Ferguson	Undated	13 October 2023
A12	Letter of support from Jessica Jones	29 September 2023	13 October 2023
A13	Letter of support from Frances Sullivan	10 October 2023	13 October 2023
A14	Letter of support from Rev Paul Clark (Redcliffe Uniting Church Council)	11 October 2023	13 October 2023
A15	Letter of support from Olivia Nye	18 October 2023	13 October 2023
A16	Letter of support from Amanda Ledingham (AOD Counsellor)	25 October 2023	3 October 2023