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

Guttridge and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2099 (5 July 2021)
Division:GENERAL DIVISION
File Number(s): 2021/2349
Re:Michael Stuart Guttridge
APPLICANT

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

DECISION
Tribunal:L M Gallagher, Member
Date:05 July 2021
Place:Perth

The Reviewable Decision, being the decision of the Delegate dated 12 April 2021, not to revoke the mandatory cancellation of the Applicant’s class BF-C Transitional (Permanent) visa pursuant to 501CA(4) of the Act is affirmed.
...............[sgd].........................................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – possession of firearms – drug offences – Direction No. 90 – primary and other considerations – protection of the Australian community – family violence – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 51-year-old man who came to Australia as two-year-old – extent of impediments if returned to UK – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Firearms Act 1973 (WA) ss 19(1ab)(b), 19(1ac)(b), 19(1)(c).
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(6B), 500(6L), 500(1)(ba), 501, 501(3A), 501(6), 501(6)(c), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii), 501G
Migration Regulations 1994 (Cth) – reg 1.05A, 2.43
Misuse of Drugs Act (1981) (WA) s 6(1)(a)
Sentencing Act (1995) (WA) ss 84D, 128(1)
CASES
Bread Manufacturers of NSW v Evans [1981] HCA 69
BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181
CPCF v Minister for Immigration and Border Protection [2015] 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Davis and Minister for Immigration and Border Protection [2017] AATA 1106
DJPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1773
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185.
Hambledon v Minister for Immigration & Border Protection [2018] FCA 7
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pavey and Minister for Home Affairs [2019] AATA 4198
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(4), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.2, 8.2(2)(b), 8.4, 8.4(1), 8.4(2), 8.4(2)(a) 8.4(3), 8.4(4), 9
REASONS FOR DECISION
L M Gallagher
05 July 2021
INTRODUCTION

This is an application for a review of a decision made by a delegate of the Respondent

(the Delegate) on 12 April 2021 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s class BF-C Transitional (Permanent) visa (the Visa) under s 501(3A) of the Act (the Reviewable Decision).
The application for review was lodged with the Administrative Appeals Tribunal (AAT) on 16 April 2021,[1] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
[1]R1, G2.
BACKGROUND FACTS
The Applicant is a 50-year-old man who was born in, and is a citizen of, the United Kingdom (UK).[2]
[2]R1, G11, pp 85-87.
The Applicant first arrived in Australia when he was nearly two years old.[3] On 11 June 1972 the Applicant was granted the Visa.[4] The Applicant has not departed Australia since his arrival as an infant.[5]
[3]A1 [2].
[4]R1, G11, p84.
[5]R1, G16, pp116-117.
Applicant’s offending
The Applicant has a lengthy offending history spanning approximately 32 years comprising 127 offences, including drug possession, firearm possession, driving offences, stealing, breaches of a violence restraining order and most recently, reoffending whilst subject to: [6]
(a)conditional suspended imprisonment; and
(b)a community order.
[6]R1, G5.
The Applicant’s offending has been continuous since 1988, other than a four-year period between early March 2015 and late March 2019, during which he did not offend.
On 6 August 2019, the Applicant was convicted of nine offences under the Firearms Act 1973 (WA) (Firearms Act)[7] and one offence under the Misuse of Drugs Act 1981 (WA) (2019 Offences). The District Court of Western Australia imposed the following sentences for the 2019 Offences:
(a)three sentences of four months’ conditional suspended imprisonment;
(b)one sentence of eight months conditional suspended imprisonment; and
(c)a concurrent 12-month community-based order.
[7]R1, G5, p29; ss 19(1ab)(b), 19(1ac)(b), 19(1)(c) of the Firearms Act.
In relation to the 2019 Offences, the Applicant spent 37 days in custody prior to sentencing.[8]
[8]R1, G6 p35.
On 23 June 2020, the Applicant was convicted of:[9]
(a)Possession of a Prohibited Drug with Intent to Sell or Supply (Methylamphetamine) under the Misuse of Drugs Act (1981) (WA),[10] for which he was sentenced to 20 months imprisonment;
(b)two counts of Reoffended whilst subject to conditional suspended imprisonment under the Sentencing Act (1995) (WA) (Sentencing Act),[11] for which there was no penalty; and
(c)two counts of Re-offending whilst subject to a community order under the Sentencing Act,[12] for which there was no penalty.
[9]R1, G5 pp27–28.
[10]Misuse of Drugs Act (1981) (WA) s 6(1)(a).
[11]Sentencing Act (1995) (WA) s 84D.
[12]Sentencing Act (1995) (WA) s 128(1).
On the same date, the Applicant was sentenced in relation to most recent drug possession offence[13] and resentenced in relation to the 2019 offences. The District Court of Western Australia imposed a total cumulative effective term of 32 months imprisonment.
[13]See para [9(a)] above. This offence was committed and the Applicant was charged on 11 December 2019 (R1, G5 [27]-[28] and R2, S2 [35]).
The Applicant served his prison sentence from 11 December 2019 until his release on parole on 10 April 2021. Following his release from prison, the Applicant has been detained at a detention centre.
Present proceedings
On 24 July 2020, the Visa was cancelled by the Delegate under s501(3A) of the Migration Act (the Cancellation Decision).[14] The Visa was cancelled on the basis that the Applicant did not pass the character test in s 501(7)(c) of the Migration Act by virtue of his having been sentenced to a term of imprisonment of 12 months or more.
[14]R1, G19.
On 1 August 2020, in response to the Delegate’s invitation to do so,[15] the Applicant made representations in support of his request for the Cancellation Decision to be revoked.[16]
[15]R1, G19 p27.
[16]R1, G9. The Applicant’s request for revocation is recorded to have been received by the Department on 21 August 2020.
After considering the Applicant’s representations, the Delegate made the Reviewable Decision on 8 April 2021.[17] The Applicant was notified of the Reviewable Decision on 12 April 2021.[18]
[17]R1, G3.
[18]R1, G4.
On 16 April 2021, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[19] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[19]R1, G1.
ISSUES
The Applicant does not dispute that he does not pass the character test.[20] The Tribunal, in any event, so finds: s 501(6)(1)(a) of the Migration Act precludes a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more.[21]

On the basis that on 23 June 2020, the Applicant was sentenced to a term of imprisonment of 20 months,[22] he has a substantial criminal record as defined and therefore does not pass the character test.
[20]A1 [29]; Transcript p 7 [5].
[21]s 501(7)(c) of the Migration Act.
[22]See [9] above.
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[23] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason” why the decision to cancel the visa should be revoked,[24] having regard to the primary and other considerations in Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 90).[25]
[23]Direction No. 90 para 5.1(3).
[24]
[25]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 79: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (20 December 2018).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 5 July 2021.
THE HEARING
The hearing was held on 15 June 2021 at the Tribunal.
The Applicant was represented by Ms Jasmin Angel of Estrin Saul Lawyers and the Respondent was represented by Mr Adrian Downie of Minter Ellison. The Applicant and Mr Downie appeared by videoconference. Ms Angel and the Applicant’s witnesses appeared in person.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses:
(a)Michelle Deworboies (Applicant’s ex-partner);
(b)Linda Bovell (Applicant’s sister);
(c)Natasha Fitzsimmons (Applicant’s half-sister); and
(d)Coralia Terace (Applicant’s partner).
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 19 May 2021 (A1);
(b)Applicant’s Reply dated 9 June 2021 (A2);
(c)Applicant’s Bundle of Evidence (A3);
(d)Applicant’s Supplementary Bundle of Evidence (A4);
(e)A 155-page set of documents provided under s 501G of the Migration Act numbered G1 to G21 (R1);
(f)Respondent’s Supplementary Bundle of Relevant Documents numbered S1 to S2 (R2);
(g)Respondent’s Further Supplementary Bundle of Relevant Documents numbered S3 to S6 (R3); and
(h)Respondent’s SFIC dated 2 June 2021 (R4).
The Tribunal has taken into account the letters of support and statutory declarations of the Applicant’s family and friends, previously provided and contained within A3, A4 and R1.[26]
[26]Namely, A3 pp1–36,45; A4 pp1–25 and R1, G12 and G13 (G14 containing duplicate copies of the letters at G13).
The Tribunal has reviewed all of the evidence before it and refers to relevant materials below.
LEGISLATIVE FRAMEWORK
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Act
Section 501(3A) of the Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …
(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No. 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No. 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 90) under s 499 of the Act. Direction No. 90 commenced operation on 15 April 2021, replacing the previous Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 79), which was revoked on the same date.[27]
[27]Direction No. 90 paras 2–3.
The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No. 79, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[28] In the current application, the parties agreed that Direction No. 90 applied in this case and submissions and evidence were prepared on that basis.
[28]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[29] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No. 90.[30]
[29]Direction No. 90 para 5.1(4).
[30]Direction No. 90 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 90 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on

non-citizens in the expectation that they are, and have been, law-abiding,

will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage 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 measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.

Informed by the principles set out in para 5.2 of Direction No. 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[31]
[31]Direction No. 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.
The primary considerations in Direction No. 90, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[32]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
[32]Direction No. 90 para 8.
Paragraph 9 of Direction No. 90 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 90 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
EVIDENCE
The Applicant
In his statements,[33] the Applicant gave the following evidence regarding the circumstances surrounding his offending conduct and his family:
[33]A4, pp 18–22 (dated 8 June 2021) (unsigned copy appears at A3, pp 28–32) and A4, pp23-25 (dated 8 June 2021).
(a)He takes full responsibility for all of his offences and pleaded guilty in each case.[34] He has never pleaded not guilty.[35]
[34]A4, p 18 [3]. See also A4, p 25 [21].
[35]A4, p 18 [8].
(b)He breached his community based order as he was still using methamphetamine, his relapse occurring after his mother passed away in 2019.[36] He was so traumatised by her death he pushed everyone and everything else away.[37] He did not engage with rehabilitation at the time the suspended sentences and community orders were imposed because he was grieving his mother’s death.[38]
[36]A4, p 18 [5].
[37]A4, p 8 [5], [7].
[38]A4, p 23 [1].
(c)He has never held an Australian driver’s licence.[39] He does not disrespect the law, he just used to [commit driving offences] without thinking or understanding the consequences.[40]
[39]A4, p 19 [11].
[40]A4, p 24 [12].
(d)He has good relationships with his daughter Rachael and his son Kevin.[41]
[41]A4, p 19 [14], [15].
(e)His son Kevin has temporarily taken over the father figure role for his younger twin sons, M1 and M2, but this is unsustainable.[42]
[42]A4, p 19 [15].
(f)Before he went to prison, he would look after the twins as much as possible.[43] Everything (relating to the twins’ care) would be left to Ms Deworboies if he cannot stay in Australia.[44]
[43]A4, p 20 [18].
[44]A4, p 20 [19].
(g)His partner Coralia had told him she can’t do this anymore and that she wants to end her life.[45]
[45]A4, p 20 [20]. See also Transcript, p 13, [25].
(h)His relationship with his biological father was “pretty rocky”, which affected him a lot when he was younger.”[46] His late mother’s ex-partner Doug was abusive towards him and towards his late mother, and he has suppressed a lot of these memories.[47]
[46]A4, p 20 [22]
[47]A4, p 20 [22], [23].
(i)His late mother then met Gordon, who he considers to be his father and for whom he was sole carer before he went to prison, following Gordon’s triple bypass surgery and subsequent strokes.[48]
[48]A4, p 20 [24].
(j)He is “pretty close” to ES, JS and CS, his nieces and nephew. He is like a father figure to them and speaks to them every day.[49] He is also very involved in his niece ES’s life, who does not feel safe without him around.[50]
(k)There is no chance he will reoffend.[51] If released on parole, he is going to see a psychologist and a grief counsellor to ensure he does not relapse into drug use[52] and for family violence.[53] Prior to going to prison, he attended Narcotics Anonymous for a few weeks and saw a grief counsellor on one occasion, however at that time he was hesitant to “open up” to a counsellor.[54] In prison, he continued attending Narcotics Anonymous for 13 weeks. The Pathways course was unavailable.[55] He was going to school in prison as well.[56]
(l)He has been “clean” from drugs for nearly two years and has not used drugs in prison or detention.[57]
(m)All his family is here in Australia.[58]
(n)His mental health has suffered since he has been in prison and detention and he has severe depression.[59] In the past, he has tried to kill himself three times.[60]
His twin sons “are about the only thing that was keeping [him] here.”[61] He would never see his twin sons when he was under the influence of drugs.[62]
(o)He has provided support to Ms Deworboies for the twins such as buying a new washing machine, clothes, money for bills, school fees, school expenses and a few beds.[63] If Ms Deworboies ever needs him, he goes to help.[64]
(p)Not being there for his children is the worst thing he has ever done to them.[65]
(q)He has a blood clot in his legs, emphysema, asbestosis and ongoing pain in his back after breaking his back during a suicide attempt.[66] He also used methamphetamine to help himself cope with his back pain.[67]
(r)He is scared to return to the UK and he doesn’t know anyone there.[68] He does not know how to get a job in the UK and is limited by his [sore) back.[69]
[49]A4, p 21 [26].
[50]A4, p 21 [28].
[51]A4, p 21 [31]. See also A4, p 24 [10]
[52]A4, p 21 [33]. See also A4, p 23 [7]-[8];p 25 [21].
[53]A4, p 24 [10]. See also Transcript, p 16 [20]-[35].
[54]A4, p 22 [34]. See also A4, p 23 [6].
[55]A4, p 22 [35]. See also Transcript, p 12 [15]-[20].
[56]A4, p 23 [6].
[57]A4, p 22 [36].
[58]A4, p 22 [38].
[59]A4, p 22 [38].
[60]A4, p22 [39].
[61]A4, p 23 [3]. See also A4, p 24 [13].
[62]A4, p 23 [4].
[63]A4, p 24 [14].
[64]A4, p 24 [16].
[65]A4, p 24 [17].
[66]A4, p 22 [39]. See also Transcript, p 16 [10]-[25].
[67]A4, p 22 [39].
[68]A4, p 25 [18].
[69]A4, p 25 [20].
At hearing, the Applicant elaborated on his driving offences committed on 23 August 2019,[70] for which he was sentenced on 3 December 2019,[71] by stating:[72]
I drove because I was - I was going to get medication for pain relief for my back.

I got picked up by the [WA Police], and I had amphetamines in my system, and I gave a false name, stupidly, and just - I wasn’t thinking because I was in a lot of pain and that.
[70]R2, S2, p 40
[71]R1, G5, p 29.
[72]Transcript, p 11 [35].
The main reason the Applicant used drugs was to help him through the grief of losing his mother and to get through life.[73]
[73]Transcript, p 12 [30].
When asked, the Applicant said his motivations for not reoffending and for not using drugs again are:
(a)that if he were to get into any more trouble, he won’t be allowed to remain in Australia[74] and
(b)that he has got to better himself for his kids and his family;[75] he does not want to find himself in this predicament ever again.[76]
[74]Transcript, p 12 [5].
[75]Transcript, p 12 [40].
[76]Transcript, p 13 [10].
The Applicant said he believes he should be allowed to stay in Australia because he believed he was Australian, his children need him because of their disability, his house, dogs and whole family are in Australia and he does not have anything at all in the UK.[77]
[77]Transcript, p 12 [45]; p 13 [5].
When asked to describe his relationship with M1 and M2, the Applicant said:[78]
[78]Transcript, p 13 [45], p 14–15 [30].
APPLICANT:   It’s pretty hard because they’re non-verbal and I try to spend as much time as I can with them because their mum really - she really can’t cope by herself because the twins are just a handful. [M1] is 120 kilos now and he’s non-verbal. He’s starting to get a little bit violent towards [Ms Deworboies], which is worrying, and they really don’t listen to anybody but me. I mean they have a hard time at school as well, but when they’re with me they’re my little angels.
MS ANGEL:… So from what people have told you, how have [M1] and [M2] already been impacted since you’ve been in prison and now detention?
APPLICANT:   Well, because I haven’t had them and that, they just get - they get pretty bored at home, and like at my place on the big property with the dogs and - like I’ve got horses next door and things like that, they’re just - they’re in their element at my place, they’re just - yes, they’re great. But at home they’re just stuck in the four walls and they go to school, come home, and that’s their routine. But at my place we - we just do all sorts of things.
MS ANGEL:Have there been any incidents since you’ve been absent from their lives?
APPLICANT:   [M1] has been in hospital three or four times now, he has had over 20 stitches, he wrecks the house at home because he’s bored. You might have the medical records there that he has only just gotten out of hospital last week from getting more stitches taken out. Things like that just don’t happen when he’s with me.
MS ANGEL:So how has [Ms Deworboies] been going without you there to help her?
APPLICANT:   Not too good actually. She cries all the time and says she needs me home. I’m just lucky I’ve got Kevin there, my son, he has put his life on hold for the last two years trying to help out and that, but it’s not his responsibility, it’s mine.
MS ANGEL:    Have there been any incidents with [Ms Deworboies] and the boys?
APPLICANT:   Yes. [M1] has - like I said, he’s a little bit violent because he doesn’t understand, and he has knocked her front tooth out, like he just pushes her out of the way because she’s - she’s like 50 kilos and he’s 120, so - and she’s not well. She has only got one kidney, yes. Her mother has died of cancer a few years - quite a few years back and that, her sister just passed away last year from cancer, so it’s pretty fearful that - I would say she’s going to have cancer too because it’s in her family. But yes, [M1] is pretty violent towards her.
MS ANGEL:    Has he done anything to the house?
APPLICANT:   He has wrecked the house. He throws himself at the walls and that, puts big holes in the walls, he’s - because he’s so big and heavy he has jumped up and down and put holes in the floorboards. He has wrecked about five clotheslines now. He’s just - he’s a menace when he’s not being watched 24/7.
MS ANGEL:    So what’s different when you’re in his life compared to now?
APPLICANT:   Well, he gets - he gets more education when he’s me and that because [Ms Deworboies] doesn’t seem to - she loves them heaps and that, but she doesn’t seem to do too much with them. Like I take them to the park, they’re at my house, I’m on a big property and that, and they just never get bored at my house, they never do.
MS ANGEL:    Is there anything in terms of disciplining them that has changed?
APPLICANT:   Well, they don’t really listen to anybody but me. As soon as I speak they listen straight away. I think it’s just because of the father figure and that, and like one time at Christmas they were running a bit of a muck and that, and I just - I made them sit on the couch for about half an hour and just spoke to them and told them, “You can’t be doing things like that” because [M1] bit one of my nephews because - I don’t know why it was, but - and nobody can seem to chastise him, you know, because you can’t smack him, you can’t yell at him because he just gets upset and frustrated because he doesn’t know what he’s doing. So yes, but when I speak to him he just seems to listen to me. He listens to my boy Kevin to a certain extent, but yes, dad - he listens to dad all the time.
MS ANGEL:So what impact do you think it would have on [Ms Deworboies] if you’re not able to stay in Australia?
APPLICANT:   Well, I’m fearful she’s going to have to put him in care, and I really don’t want him to go into care because I’ve heard what happens to kids in care and things. Because the way he’s non-verbal and things like - I understand what he says and that, you can see in his eyes that he understands, and yes, [Ms Deworboies] won’t cope at all. She’s having a real rough time as it is.
MS ANGEL:    And what about your boys, would they be able to visit you?
APPLICANT:   No. Well, she can’t come and - she can’t bring them to visit because they don’t - they don’t respond well to anything, like they even have a hard time at their special school and things like that, you know, they’re constantly getting told off - and, well, [M1] is anyway. [M2] is not too bad, he understands a lot more than what [M1] does. But he’s - he seems to help me with [M1], so it makes it a lot easier when they’re both together.
As to his relationship with his niece, ES and his nephew JS,[79] the Applicant said he is like the dad they never had, because their dad is abusive and “the kids… they don’t like him at all”.[80] The Applicant said ES fears for her life and locks her bedroom door every night[81] and JS is always looking over his shoulder as he knows his dad is going to come looking for him.[82] The Applicant said ES and JS’ father would not be doing that if the Applicant was out (of detention) because he knows it is not the right thing to be doing.[83] When asked, the Applicant said he did not provide financial support to ES and JS, other than gifts.[84]
[79]ES (17 years old: A3, p 37) and JS (14 years old: A3, p 40) are two of the Applicant’s half-sister Natasha Fitzsimmons’ children.
[80]Transcript, p 15 [35]–[40].
[81]Transcript, p 15 [35]–[40], p 16 [5]. See also Transcript, p 53 [10]–[15].
[82]Transcript, p 15 [35]–[40].
[83]Transcript, p 15 [45].
[84]Transcript, p 40 [20]–[25].
As to his fear of returning to the UK,[85] the Applicant said:[86]
If I get moved to the UK, to be honest with you, I’m not - I’m not going to go. I’m going to - I’m going to probably kill myself so I can stay here with my mum. I mean my whole family, they don’t want to hear it. I’ve said it a couple of times and my sister said, “I don’t want to hear that sort of rubbish.” You know. I’ve said, well, you know, without mum, which has been pretty hard, and dad is on his last legs now, if I can’t - can’t get to stay with my family then I really don’t want to live. My family is everything I’ve got.
(Emphasis added).
[85]See [40(r)] above.
[86]Transcript, p 16 [40]–[45].
During cross-examination, the Applicant said the firearms that were found when his house was raided on 10 January 2019 (including a loaded pistol), were in an alfresco area underneath a cabinet, but they weren’t in a lockable safe.[87] When asked, the Applicant said he did not have a licence to hold any of those firearms.[88]
[87]Transcript, p 17 [40]–[45].
[88]Transcript, p 18 [5].
The Applicant said that following his 2019 offences, he was taken into custody for six weeks, then released on bail because his mother was dying.[89]
[89]Transcript, p 20 [5].
When asked by the Respondent’s representative, the Applicant agreed that when he was sentenced in relation to the 2019 WA Police raid, it was submitted on his behalf that: [90]
(a)he had realised it was the time in his life where had had to go and address the issues underlying his methamphetamine use and criminality; and
(b)he had the realisation that it was time to get help.
[90]Transcript, p 20 [20]–[35].
The Applicant said that during his time in custody, he realised he needed to make changes.[91]
[91]Transcript, p 20 [35].
The Applicant said that the sentencing judge in 2019, by suspending his sentences, gave him the opportunity to deal with his grief and the underlying depression related to his methamphetamine use[92] and to rehabilitate[93] but that he:
(a)continued to engage in further criminal offending three weeks after being sentenced;[94]
(b)continued to drive unlawfully;[95]
(c)continued to use methamphetamine;[96]
(d)provided a false name and false identity when questioned by WA Police in the first instance;[97]
and agreed he had wasted the opportunity the court gave him to rehabilitate.[98]
[92]Transcript, p 20 [40],
[93]Transcript, p 21 [10]
[94]Transcript, p 20 [45]; p 21 [5]–[10].
[95]Transcript, p 21 [10]–[15].
[96]Transcript, p 21 [10].
[97]Transcript, p 21 [5]; [15].
[98]Transcript, p 21 [15].
When asked about the second WA Police raid on 11 September 2019, the Applicant agreed the WA Police had found 13 grams of methamphetamine in his possession, separated into nine small bags and electronic scales in working order.[99]
[99]Transcript, p 21 [30].
At the Tribunal hearing, the Applicant was asked to comment on the reporting officer’s remarks, referred to by Petrusa DCJ during sentencing, regarding the offences relating to the second WA Police raid, being:[100]
Your compliance with the other aspects of those orders has been limited. You generally attended supervision as directed but you didn’t demonstrate a motivation to address your offending behaviour. You engaged with a private psychologist on only one occasion and then you were considered not to be forthcoming and honest with your current circumstances and demonstrated no willingness to engage.
You initially declined assistance in reducing your drug use and didn’t attend counselling despite several clear directions to do so. You eventually attended Wungening for substance use counselling on 15 November 2020 for intake and then you went to only one session. You then didn’t attend after that.
You were directed to attend urinalysis on five occasions and you provided three positive tests for amphetamine and methylamphetamine and in relation to the other two you failed to attend although one of those was an authorised failure. Further, it’s clear of course that you breached those orders on three separate occasions by your reoffending…
[100]R1, G6 [36]–[37].
The Applicant commented on the matters contained in the extract at para 54 above as follows:
(a)he should have taken the opportunity to rehabilitate when he had it;[101]
(b)he was still using drugs at this point in time;[102]
(c)he failed his urinalysis tests because he was still grieving for his mother;[103] and
(d)at the time, he was left to his own devices and had no family support, in the sense that while his family were willing to help,[104] his family didn’t actually know his circumstances and he didn’t really tell them,[105] or seek to rely on their support.[106]
[101]Transcript, p 22 [10].
[102]Transcript, p 22 [20].
[103]Transcript, p 22 [25].
[104]Transcript, p 23 [5].
[105]Transcript, p 22 [40]–[45].
[106]Transcript, p 23 [5]–[10].

As to what he learned from Narcotics Anonymous about why he fell into using drugs, the Applicant said he has learnt how much drugs hurt the community and that there is no room for drugs in his life.[107] As to what he hopes to achieve from the Pathways program if and when he can access it, the Applicant said he hopes that the program can put him on the right path to stay away from drugs and do the right thing by the community.[108]
[107]Transcript, p 23 [20].
[108]Transcript, p 23 [45].
When asked, the Applicant accepted that he still has a lot of rehabilitation to do before he is able to put his drug use behind him, and that to date he has not completed it.[109]
[109]Transcript, p 24 [5].
As to the various fines totalling approximately $18,500 which the Applicant had outstanding in January 2020,[110] the Applicant said he has paid them off in their entirety with funds earned through his work in prison.[111]
[110]Transcript, p 25 [5].
[111]Transcript, p 25 [25].
When asked, the Applicant said he had been in a relationship with his partner Ms Terace for six years, her having lived at his property for about four or five years.[112] The Applicant said he had asked Ms Terace to move out for a period just before his mother passed away,[113] as he wanted to grieve alone and didn’t want anybody to see him go through that pain.[114]
[112]Transcript, p 25 [45].
[113]Transcript, p 25 [5]–[10].
[114]Transcript, p 26 [45].
The Applicant said he had used methamphetamines with Ms Terace now and then, during the period between her returning to his home after his mother’s death and prior to him going to prison[115] and that he had supplied them to her.[116] When asked why he had told Corrective Services Officers in December 2020 that Ms Terace was pro-social and did not participate in drug use,[117] the Applicant said it was because Ms Terace had smoked methamphetamine with him (only) once or twice.[118]
[115]Transcript, p 28 [45].
[116]Transcript, p 26 [15]–[25].
[117]R2, S1, p 4.
[118]Transcript, p 29 [40]–[45].
The Applicant said Ms Terace was unaware of his drug use until just after his mother passed away, as he would hide in the shed.[119]
[119]Transcript, p 27 [30]–[40].
The Applicant said that Ms Terace had not used methamphetamine for two years and he did not think that she had undertaken any rehabilitation in her relation to her drug use.[120]
[120]Transcript, p 26 [30]–[45].
When the Respondent’s representative put it to the Applicant that his relationship with Ms Terace would lead to relapsing into methamphetamines, that being relevant to the Applicant’s risk of reoffending,[121] the Applicant said:[122]
I know I’m not at risk of reoffending again because if I do reoffend again I would be straight back in this situation, and I really, really don’t want to be back in this situation.
[121]Transcript, p 27 [15]–[20].
[122]Transcript, p 27 [20].
The Applicant said he intends to obtain a driver’s licence straight away (if released) and that Ms Terace has enquired with the traffic authority regarding this process.[123] The Applicant said he was “pretty sure” his history of traffic offences should not affect his obtaining a licence, albeit one with special conditions.[124]
[123]Transcript, p 30 [15]–[20].
[124]Transcript, p 30 [30].
The Applicant said he was not providing Ms Terace with any financial support and understood she was struggling to pay rent on the property and to feed the dogs.[125] The Applicant said that if released, he would provide some financial support to Ms Terace, with plans to start back at work straight away.[126]
[125]Transcript, p 39 [40].
[126]Transcript, p 39 [40]–[45].
As to the care arrangements in place with Ms Deworboies for the care of M1 and M2:[127]
[127]Transcript, p 30 [40]–[45]; pp 31–33.
(a)The Applicant stopped living with Ms Deworboies about 10 to 12 years ago.
(b)There was no formal custody arrangement in place, care being managed informally.
(c)He has access to the children whenever he wants.
(d)He cares for the children as often as possible.
(e)He pays school fees[128] and supplies clothes all the time.
(f)Most of the time he had care of M1 and M2 every week at his property, some weekends they don’t come to him and he is there most of the time when they get off the bus from school.
(g)He stopped caring for M1 and M2 after his mother fell ill and didn’t see them for a little while after his mother passed away, one of the reasons being that he was using methamphetamines quite heavily during that period.
(h)The firearms at his property were not in a locked cabinet but were locked away and hidden. One firearm was in his car.
(i)He was never concerned that one of his sons would find firearms or drugs at his property and accepted it could be “pretty dangerous” for their wellbeing if they had.
(j)He disagreed, then agreed to a certain extent that having his sons visit his property where there were firearms and drugs put them at the risk of harm.
(k)M1 and M2 need a lot of support services to assist them with their disabilities and Ms Deworboies basically looks after all that. The boys go to a special school, they don’t have regular therapy and he was unsure of what (other organisations) Ms Deworboies utilises.
(l)He in the main source of Ms Deworboies’ respite care, although he has been unable to provide this for the last two years. His son Kevin provides a lot of support to his mother but would not continue to do so if the Applicant’s application was unsuccessful, as his son has his own life to live. He understands the government provides respite to Ms Deworboies one weekend per month, which he considers is “really not enough.”[129]
[128]The Applicant gave evidence that he had not paid M1 and M2’s school fees while he has been incarcerated (Transcript, p 40 [10]).
[129]Transcript, p 40 [40]–[45].
As to the restraining order taken out against him by his former partner Ms Hodgson and the instances of family violence in 2010,[130] 2012,[131] 2013[132] and 2015,[133] the Applicant said:[134]
[130]R2, S2, pp 107–108.
[131]R2, S2, pp 151–152.
[132]R2, S2, pp 149–150.
[133]R2, S2, pp 143–145.
[134]Transcript, pp 34–37; p38 [5]֪–[30].
(a)He was angry but he was never physically violent towards Ms Hodgson. He never kicked her as recorded by WA Police in 2010.
(b)The dresser drawers he broke during an incident in 2010 were his, which he was moving at the time. He kicked the screen door in order to open it as his arms were full of items he was carrying.
(c)His son Kevin, who was 12 years old at the time and Ms Hodgson’s son were present at the incident in 2010.
(d)He denies ever carrying a metal baseball bat and smashing a rear window and front windscreen of a car parked at Ms Hodgson’s address, as recorded by WA Police in 2015.
(e)He accepts that in 2013 he yelled at Ms Hodgson, abused her and took off in her car “to get away from the volatile situation.” He denies then returning to her home, continuing to yell at her and urinating onto her, as recorded by police, adding that Ms Hodgson lied to the WA Police.[135]
[135]Ms Hodgson concedes this point in her statement at R1, G13, p 99. However, Ms Hodgson did not give evidence at hearing. Hence, this evidence remains untested. The Applicant acknowledges the limited weight that can therefore be placed on this evidence (Transcript, p99 at p20).
(f)He denies that in 2012 he damaged phones inside Ms Hodgson’s home, denies throwing a plate with food and ripping the rear flywire door off its frame and throwing it ad using a small axe to smash her work phone. He also denies punching Ms Hodgson on the left side of her face following the incident. The Applicant said all Ms Hodgson’s claims against him are false.
(g)He accepts he continues to interact with and contact Ms Hodgson (including via text messages and telephone calls) when the restraining orders were in place because Ms Hodgson continued to continuously call him and tell him she would kill herself if he didn’t come over. The Applicant said he knew he was in breach of the restraining order in doing so and the WA Police “didn’t seem to care” when he showed them his phone call and text history.[136]
[136]Transcript, p 37 [35].
(h)He accepts family violence is serious and wrong and is prepared to engage in any family violence related rehabilitation that he is able to, even though he claims Ms Hodgson has lied about these matters, because:[137]
[137]Transcript, p 37–38.
APPLICANT:   Well, I seen [sic] my mum going through a lot of it.
MR DOWNIE: But you say Ms Hodgson’s a liar, so why do you have to rehabilitate about [sic]?
APPLICANT:   Well, I really don’t think that I need to do family violence, to be honest with you. …so I think I should do it to - to be able to stay in the country.
… my behaviour was as bad as Joanne’s, and I realise that, and it needs to be addressed [by accessing rehabilitation]…
MR DOWNIE: You would agree that you haven’t engaged in any rehabilitation in relation to that conduct, wouldn’t you, Mr Guttridge?
APPLICANT:   No. Well, I didn’t think I had to, because the problem was gone. I mean, we remain very good friends, and because we’re not in a relationship, there is no - there is no conflict there.
(Emphasis added).
When, asked, the Applicant said he had not made any inquiries about establishing his life in the UK, because he hopes not to return there.[138] The Applicant said that he has no family in the UK that he knows of and that he may have one aunt there, but was unsure.[139]
[138]Transcript, p 39 [5]–[10].
[139]Transcript, p 39 [15]–[30].
During re-examination, the following exchange took place between Ms Angel and the Applicant regarding the care and supervision requirements for M1 and M2, the reported incidents of family violence and his potential rehabilitation:[140]
[140]Transcript, p 43 [30]–[45]; p 44.
APPLICANT:   They can’t just roam around anywhere. They need 24-hour constant supervision, and - and that’s - that’s the problem with [Ms Deworboies]. She doesn’t give it to them. That’s why [M1] has hurt himself so many times. Like, she just leaves him to his own devices in the bathroom, and that’s why he has got so many stitches and that now. I - I know that and I can’t look after both of them at the same time. I have to have someone else there with me so we can both keep an eye on them at all times.
… [Ms Deworboies is] there by herself and she’s trying to keep an eye on two of them. If one goes that way and one goes that way, she can’t keep an eye on the two of them. And that’s why I said she has got to have somebody there. Like Kevin, Kevin can’t be there all the time. He tries to be but he can’t. And [M1] needs more supervision than [M2], and if she goes chasing after [M2] then something happens to [M1], and vice versa. But yes, I - like, I have rang my sisters a couple of times and said, “Look, I have got the boys this weekend and I’m by myself. Can you come and help me?” Because I can’t look after both of them at the same time. I don’t have four eyes, and you need four eyes to look after those two, because they’re - they’re - they’re out of hand. But they’re good kids, they’re great, and they understand.
…I’m surprised I didn’t harm [Ms Hodgson] to be honest with you, because the amount of pressure and the amount of things she used to do to me was horrible. That’s why I took her car a few times, just to get out of the situation and to get away from it, and she realises now that, you know, it wasn’t the right thing to do and - yes. I’m surprised that we still remain very good friends.
MS ANGEL:…Is the rehab more to do with being able to, you know, avoid any situation like that in the future?
APPLICANT:   Yes, for sure. But it’s not just that, it’s just, it’s more to better myself in myself. The more things that I can do, I mean, I’ve left it a bit late, I’m 51-years-of-age very soon and I’ve just - yes, I need to do everything I can and anything in my power just to better myself in myself and to feel better, because I’ve never really felt really good in myself.
MS ANGEL:Have there ever been incidents of family violence in any of your other relationships?
APPLICANT:   No, there’s been arguments and things, but never to that scale. Well, I’ve never ever had the [WA Police] called on me, never.
Ms Deworboies
In her statements and statutory declaration,[141] and at hearing, Ms Deworboies gave evidence regarding her relationship with the Applicant, her own personal circumstances and those of their four children.
[141]R1, G13, pp 93–96 (dated 12 August 2020); A3, pp 4–6 (dated 21 April 2021); A4, pp 12–14 (dated 26 May 2021) (unsigned copy appears at A3, pp 33–35).
Ms Deworboies said she knows the Applicant has been convicted of drug and gun offences, but did not know the full story[142] and was unaware that the Applicant was using drugs.[143] Ms Deworboies said the Applicant never came to her house affected by drugs.[144]
[142]A4, p 13 [10]. See also Transcript, p 58 [10].
[143]A4, p 13 [13].
[144]A3, p 13 [13].
Ms Deworboies said that prior to his incarceration, the Applicant helped financially with M1 and M2’s schooling expenses, including excursions, uniforms, fees and other outings.[145] Ms Deworboies said that the last time the Applicant provided financial support to her was for school fees and uniforms just prior to his being detained.[146] Ms Deworboies said the Applicant has a debt to the government relating to unpaid child support[147] and this debt was put on hold while the Applicant has been in prison.[148]
[145]Transcript, p 48 [25].
[146]Transcript, p 59 [5]; [20]
[147]Transcript, p [10]–[25].
[148]Transcript, p 61 [31]. See [84] below regarding the informal child support arrangement agreed between the Applicant and Ms Deworboies.
Ms Deworboies that her sons M1 and M2 both require 24-hour care, seven days a week.[149]
[149]Transcript, p 47 [30].
Ms Deworboies gave evidence that her son M2 is high functioning in that he is toilet trained, is slightly verbal with a vocabulary of about 30[150] to 40 words,[151] can dress himself,[152] but still needs some guidance in bathing and in washing his hair.[153] Ms Deworboies said M1 is low functioning and totally reliant,[154] she is still trying to toilet train him, he still needs help bathing, he only sleeps a few hours a night[155] and is nonverbal. Ms Deworboies said these matters cause M1 to be very frustrated and violent[156] and can be very intimidating with his violence.[157] Ms Deworboies said that M1 has lashed out at her which scares her[158] and has put holes in the walls, floorboards and broken beds.[159]
[150]Transcript, p 47 [30].
[151]Transcript, p 47 [30].
[152]Transcript, p 47 [30].
[153]A3, p 4.
[154]Transcript, p 47 [30].
[155]See also A4, p 12 [2].
[156]A3, p 4.
[157]Transcript, p 47 [35].
[158]A3, p 4. See also Transcript, p 52 [5]–[10].
[159]Transcript, p 48 [30].
At hearing, Ms Deworboies said:[160]
… He will yell and scream at you, he will flap his hands, he will jump up and down, which has caused damage to my house. He head butts walls, he will hit himself, bite himself, punch himself. And if he gets really angry, he’ll have a go at me as well, which was punching usually or pinching or biting, depending on how angry he is. He will also turn on his brother as well, if [M2]’s in the vicinity, but [M2] has learnt that if [M1] gets very angry to disappear and he’ll usually go and lock himself in the bedroom until [M1] is over his tantrum.
[160]Transcript, p 47 [35]–[40].
Ms Deworboies gave evidence that the Applicant is a great help with M1 and M2, providing weekend sleepovers and after school care.[161] Ms Deworboies stated that the respite care centre that M1 and M2 used to attend was currently closed,[162] due to COVID-19[163] and had been since February 2020.[164] Ms Deworboies said the Applicant would resume caring for M1 and M2 during the evenings and on weekends if he were allowed to stay in Australia.[165]
[161]R1, G13, p 94. See also Transcript, p 47 [45]; p 48 [5].
[162]A3, p 5.
[163]A4, p 12 [4]. See also Transcript, p 50 [35]; p 58 [15].
[164]Transcript, p 53 [40].
[165]A4, p 12 [5].
Ms Deworboies said that she does not know if she can keep doing caring for their sons M1 and M2 by herself, explaining that the boys don’t like strangers and are becoming taller and stronger.[166] Ms Deworboies said she fears that if the Applicant is deported she won’t be able to cope[167] and also that it would “be the end” of the Applicant’s father, Gordon.[168]

Ms Deworboies stated that if the Applicant was here, M1 would not get so upset because they have a special bond[169] and the Applicant is the only person M1 seems to listen to.[170] Ms Deworboies said M1 has become more violent since the Applicant has been in prison,[171] which she believes (from her own observations) has escalated during the time M1 has been separated from his father.[172] Ms Deworboies also said that M1 and M2 would be “devastated” if the Applicant was removed from Australia.[173]
[166]R1, G13, p 94. See also A4, p 12 [6].
[167]See also Transcript, p 48 [10]–[15].
[168]R1, G13, p 95.
[169]A3, p 4.
[170]Transcript, p 48 [5].
[171]Transcript, p 48 [35].
[172]Transcript, p 49 [5].
[173]Transcript, p 51 [35].
Ms Deworboies said that when M1 had had two falls in the bathroom the last month, requiring hospital visits and stitches to his elbow[174] and then to his shin, she had to “do it all” by herself.[175] Ms Deworboies stated that she feels she doesn’t have anyone else to lean on other than the Applicant.[176]
[174]See A4, pp 41–43.
[175]A3, p 6.
[176]A3, p 6.
Ms Deworboies said that she fears someone would prey on M1 and M2 if they were in a care facility[177] and as a child of abuse herself she does not trust anyone else with her children.[178]
[177]A3, p 5.
[178]Transcript, p 51 [15]–[20].
Ms Deworboies said that her son Kevin has lived with her and helped with M1 and M2 while the Applicant has been in prison[179] but that Kevin has plans to move on with his own life, and move out within the next four weeks,[180] which she cannot blame him for.[181]

Ms Deworboies said she does not expect Kevin to put his own life on hold for her for and for his brothers.[182]
[179]A4, p12 [1].
[180]Transcript, p 55 [40].
[181]A3, p 5. See also Transcript, p 50 [45].
[182]A3, p 5.
Ms Deworboies said she encourages M1 and M2 to speak to the Applicant on the phone, but sometimes this is too hurtful for M1.[183] Ms Deworboies said video calling would be an insufficient means of communication because M1 “has to see you to acknowledge you.”[184]
[183]A4, p 12 [7].
[184]A4, p 13 [8].
Ms Deworboies said she thinks that if the Applicant were removed from Australia he would kill himself in order to stay in Australia and to be buried next to his late mother.[185] Ms Deworboies said that she does not think the Applicant would reoffend if he were allowed to stay in Australia because he would be too scared to and this (process) has taught him an important lesson.[186]
[185]A4, p 13 [15]; p 14 [17].
[186]Transcript, p 52 [30]-[35].
As to the future care of M1 and M2 if the Applicant were to remain in Australia, Ms Deworboies said that she hoped the Applicant might move closer to where she and the twins live and be around a lot more often.[187] Ms Deworboies said that this was her hope at this stage and was yet to discuss this with the Applicant.[188] As to the Applicant’s additional responsibilities and commitments to his property, partner and his dogs, Ms Deworboies said:[189]
I can understand that if [the Applicant] stays in the country that he has a lot more things that he has to prioritise, and I understand that fact. But I’m hoping that as time goes on we will get back to the way we were before.
[187]Transcript, p 54 [35]-[40].
[188]Transcript, p 55 [20]-[25].
[189]Transcript, p 55 [10].

When asked by the Respondent’s representative, Ms Deworboies said her relationship with the Applicant officially ended in 2009 or 2010 and he moved out around that time.[190] Ms Deworboies said that there was no formal child support arrangement, she was fine with this[191] and felt she had adequate financial support for the twins.[192] Ms Deworboies said the Applicant did not provide support to her at the time his mother passed away in 2019 and for four or five months after.[193]
[190]Transcript, p 56 [10].
[191]Transcript, p 60 [10].
[192]Transcript, p 60 [40]
[193]Transcript, p 56 [20]-[45]; p 57 [5]–[10].
Ms Deworboies said she did not have any concerns for the wellbeing of her children regarding the Applicant’s struggle with drug addiction at the time his mother passed away because if the Applicant was on drugs, he wasn’t on them when he saw his children.[194]

Ms Deworboies also said she would never have let the Applicant take the children if he was known to be taking drugs and that if the Applicant resumed his drug use in the future, she would have concerns for her children’s wellbeing but was of the view that the Applicant would never hurt his children.[195] Ms Deworboies also stated that the Applicant had never driven with the children in the car.[196]
[194]Transcript, p 57 [30].
[195]Transcript, p 57 [35]-[45] and p 58 [5]–[10].
[196]Transcript, p 58 p 58 [30]–[35].
When asked by the Respondent’s representative, Ms Deworboies said the twins were provided support under the NDIS and that they had plans in place, although she unsure whether those plans included funding for her to access respite care (once it becomes available)[197] and therapy services.[198] Ms Deworboies also confirmed, when asked, that the respite care she had accessed in order to attend the hearing was funded by the NDIS.[199] Ms Deworboies said that she tells the Applicant everything in relation to the supports that are in place for the twins, but she is the one who attends the meetings, for example, and informs the Applicant accordingly.[200]
[197]Transcript, p 58 [15]–[25].
[198]Transcript, p 58 [40].
[199]Transcript, p 58 [25].
[200]Transcript, p 60 [35]–[45].
Ms Bovell
In her statement and statutory declaration,[201] and at hearing, Ms Bovell gave evidence regarding her relationship with her brother, the Applicant.
[201]R1, G13, pp 101–103 (undated, copy of which appears at R1, G14, pp 106–108) and A3, pp 17–21 (dated 19 May 2021).
Ms Bovell said she was five years old and the Applicant two years old when they came to Australia with their parents.[202] Ms Bovell said their two younger sisters, Natasha and Bonnie were born in Australia.[203] Ms Bovell said the Applicant is very close with her children and grandchildren[204] and her sister Natasha’s children.[205] Ms Bovell said that all of their family is in Australia and that they never had anything in England.[206] Ms Bovell said that she and the Applicant have one aunt in the UK, however, she doesn’t know her name or know her at all.
[202]R1, G13, p 101. See also A3, p 17 [1]; Transcript, p 64 [30]–[35].
[203]A3, p 17 [1]
[204]A3, p 17 [4]–[5]
[205]A3, p 17 [6].
[206]Transcript, p 64 [40].
Ms Bovell said she believes the Applicant’s behaviour[207] relates to the breakdown of their parents’ marriage shortly after their arrival in Australia, and the Applicant’s learning difficulties.[208] Ms Bovell also said that the Applicant’s psychological problems stem from the abuse he suffered at the hands of their sisters’ father, Mr Fitzsimmons and from observing him abusing their mother.[209] Ms Bovell said that she and the Applicant have hence always been very close, would never leave each other alone as children[210] and have always held on to each other.[211]
[207]In the context of Ms Bovell’s statement, the Tribunal takes this reference to the Applicant’s behaviour to be to his offending behaviour and drug use.
[208]R1, G13, p101.
[209]A3, p 20 [23]; Transcript, p 65 [5].
[210]A3, p 20 [22].
[211]Transcript, p 65 [40].
Ms Bovell said the Applicant is a “rock” for her and their family, caring for their late mother before she passed away and for their father Gordon following his heart attacks and stroke.[212] Ms Bovell said the plan is for their father to live with the Applicant if he can stay in Australia.[213] Ms Bovell also said that the Applicant having been “locked up” has caused some nightmares and had a big emotional impact on the children and grandchildren.[214]
[212]R1, G13, p 102.
[213]A3, p 20 [26].
[214]A3, p 18 [10].
Ms Bovell said she worries that if the Applicant is removed from Australia then “it will be the end for dad.”[215] Ms Bovell said that she will support the Applicant with anything that is needed if he should stay in Australia,[216] and that she has taken steps to arrange counselling for him.[217] Ms Bovell also said she has always been willing to support the Applicant at any stage over the 20 plus years of his criminal offending.[218]
[215]R1, G13, p 103.
[216]R1, G13, p 103. See also A3, p 21 [28]-[29].
[217]Transcript, p 65 [45].
[218]Transcript, p 68 [35].
As to her knowledge of the Applicant’s offending, Ms Bovell said:[219]
I do not really know much about [the Applicant’s] criminal history. I know he has been done for speeding, drugs, things like that. I know he is not perfect but he’s mine.
[219]A3, p 18 [9]. See also Transcript, p 68 [40].
Ms Bovell said that she only recently became aware of the Applicant’s drug addiction.[220]
[220]Transcript, p 69 [30].
Ms Bovell stated that she does not think the Applicant has grieved their mother’s death properly and he still needs to see a psychologist.[221]
[221]A3, p 18 [11].
Ms Bovell said that she believes the Applicant’s won’t reoffend because he is terrified of going back to England.[222] Ms Bovell said she is extremely distressed by the thought of how she would cope if the Applicant could not stay in Australia.[223] Ms Bovell stated the Applicant is sick with mesothelioma and depression[224] and Ms Deworboies had aged since the Applicant has not been with her and the twins and she is suffering.[225]
[222]A3, p 20 [27].
[223]A3, p 19 [22].
[224]Transcript, p 66 [20].
[225]Transcript, p 67 [25].
Ms Bovell said that the twins cannot tolerate car rides in excess of 20 minutes or train rides therefore they cannot visit their father either locally in prison. There was “no way – not a chance” of them being able to visit if the Applicant were in the UK.[226]
[226]Transcript, p 67 [30]–[45].
As to M1 and M2, Ms Bovell said the twins need a lot of support, they do not listen to Ms Deworboies, but they stop (to listen) when the Applicant speaks.[227]
[227]Transcript, p 66 [35]–[40].
Ms Fitzsimmons
In her statutory declaration,[228] and at hearing, Ms Fitzsimmons gave evidence regarding her relationship with the Applicant and their siblings and her own personal circumstances.
[228]A3, pp 15–16.
Ms Fitzsimmons said that the Applicant had suffered childhood abuse at the hand of his biological father and his stepfather and since then had no contact with them. [229]
[229]A3, p 15.
Ms Fitzsimmons said that before his being arrested, she would see the Applicant four to five times per week. Ms Fitzsimmons said the Applicant is the one person that she has felt the closest to.[230]
[230]A3, p 15.
Ms Fitzsimmons stated:[231]
I know [the Applicant] has broken the law, made mistakes, bad decisions and wrong choices. We have talked a lot about these things during his time in prison. [the Applicant] has shown great remorse and disappointment with himself and his actions. He now understands the distress that he has caused us as a family due to his wrong choices. We now stand to lose the one person that has consistently been the desperately needed male role model, protector and rock of our family.
[the Applicant] has always been a good mate, neighbour and friend you can turn to and depend upon in times of despair. My sister, Bonnie and I depend on [the Applicant] a lot and he is the closest thing to a father that our children have. Bonnie and I have suffered both physical and emotional abuse whilst our children have endured mental, emotional and even physical abuse.
[231]A3, p 15.
At hearing, Ms Fitzsimmons gave evidence about her fears for her children’s safety if the Applicant were removed from Australia:[232]
[232] Transcript, p 72 [40]–[45] and p73 [5]–[25].
MS FITZSIMMONS: …[CS’s] father left when she was three. [ES] and [JS]’s father is not a very nice person. He’s very violent…
…
He’s been known to be - sexually advanced towards my daughter. My daughter locks herself in her room if she’s not at school every day because she fears that he might come and, like, hurt her again. He’s - he’s not a nice person. But the only thing that stopped him from pursuing anything, like, playing his games is my brother. My brother puts him off. Like, if my brother’s not there, I don’t know what he would do to - to the kids. [ES] is absolutely petrified if her Uncle [the Applicant] leaves that she’s going to be left alone.
…
My son got his first job a couple of weeks ago and the first phone call he made was to his Uncle [the Applicant] letting him know, you know? He’s 14. ‘I got myself a job, Uncle [the Applicant].’ He was so proud of him. [ES] is too scared to get a job. She’s too scared to venture out of the house. She’s just - till [the Applicant] is around, a phone call away like he always is, she won’t feel safe, I don’t think. Ever.
MS ANGEL:So I’ve only got one more question for you. Do you have anything else you’d like to tell the [T]ribunal?---
MS FITZSIMMONS: He’s a very caring, loving man. Very family-orientated. He looks after a lot of us. He always has since a young age. And, without him, I think I’d be totally lost. We all would be lost. My dad would be lost. My kids - I worry about their wellbeing, especially of [ES]. I worry about her not being able to become part of - she just secludes herself away from everybody, and it’s not a nice thing to see, you know, your 18 - nearly 18-year-old daughter who could just be about ready to experience life not want to get out there and do it through fear. If [the Applicant] is not around, I do think that she will deteriorate within herself. I know that I will. I know that a lot of us will miss him, and I - honestly, I can’t say what I would do without him. Honestly. Because he has always been there, and he’s always been that phone call away or that drive away. So I just - I would not know what to do…
During cross-examination, Ms Fitzsimmons said that she was aware of “the little things that he did when he was younger”,[233] but she wasn’t really aware of too much of his criminal activity.[234] Ms Fitzsimmons said the Applicant seems to only get into drugs in times of turmoil, especially after their mother passed away.[235]
[233]Transcript p 74 [5].
[234]Transcript, p 74 [5]–[10].
[235]Transcript, p 74 [45].
When asked, Ms Fitzsimmons said she would “most definitely” provide support to the Applicant if he was to be released into the community, there had never been a point where she would not have bene prepared to provide that support and she would “most definitely” be prepared to support the Applicant with his rehabilitation.[236]
[236]Transcript, p 74 [15]–[25].
Ms Terace
In her statements[237] and at hearing, Ms Terace gave evidence regarding her relationship with her partner, the Applicant.
[237]R1, G12 (dated 21 August 2020) and A4, pp 3–8 (dated 19 May 2021) (unsigned copy appears at A3, pp 22–27).
Ms Terace state she vows to help and support him upon his release, with counselling for depression and substance abuse.[238] Ms Terace said that she and the Applicant have set up a home together with two dogs[239] and that she speaks to the Applicant around 25 times per day.[240]
[238]R1, G12, p 91.
[239]R1, G12, p 91.
[240]A4, p 3 [5].
Ms Terace said that the Applicant is her “world” and she would not like to presume what her life would be like with him with her.[241]
[241]R1, G12, p91.
At hearing, Ms Terace stated that she has known and been in a relation with the Applicant for roughly six years.[242] Ms Terace said that since the Applicant has been incarcerated and now detailed it’s been “hell” for her, adding:[243]
I’ve been in a home alone, so I maintain … the rent on the premises and also looking after the two German Shepherd dogs that we have. So, financially it’s been overwhelming. I’ve had to actually access my superannuation on three - three, four occasions now, so extracting $85,000 because I’m unemployed and I just cannot make the payments on … the Government payments. Mentally and physically, it’s been a journey that I never ever want to go on ever again. It’s caused me a lot of mental anguish. I’m seeing a psychologist. It’s been hard.
…
Look, I stand to lose the property. I have to actually to go to a room share type of thing because I can’t have - I’ll have to put the dogs down. It would be hard. It would break me.
[242]Transcript, p 76 [45].
[243]Transcript, p 77 [5]–[20]. See also A4, p 4 [11]–[12].
Ms Terace said that if the Applicant were allowed to stay, she would support him for as long as he needed, in any way, shape or form, including with counselling, staying off drugs and running his business.[244]
[244]Transcript, p 77 [25]–[35],
Ms Terace said she does not think the Applicant would reoffend or use drugs again[245] and that he is so regretful and remorseful for his past actions.[246] Ms Terace said she is aware of the full extent of the Applicant’s offending history having worked with his lawyers during past court appearances,[247] and the Applicant had divulged limited information regarding his offending prior to that time.[248]
[245]Transcript, p 78 [25].
[246]Transcript, p 78 [10]
[247]Transcript, p 90 [5]–[10]; A4, p 5 [15].
[248]Transcript, p 90 [45].
Ms Terace said the Applicant now just wants to be there for his family and enjoy his children.[249]
[249]Transcript, p 78 [15]–[25].
As to her observations of the Applicant’s and her own relationship with M1 and M2 and the impact on them if the Applicant were to be removed from Australia, Ms Terace said:[250]
He disciplines those children and he is the actual person that they look up to. He is the fatherly figure there. He - he would see the children as often as he could, whether it be on a daily basis sometimes. You know, he’d just pop in or he’d - you know, we’d driver over there or he’d get a mate to drive him there. Then fortnightly or sometimes, you know, every second - or every weekend they’d come to visit us and they’d stay with us and he’d do things with them. He’d teach them skills of - mechanical or he’d actually dig a hole with them and show them how to do that. You know, he would basically, you know - they - they looked up to him as the actual strong figure in that relationship because, you know, with their mother, they’re - they’re so - they’re easily - they easily like sort of take over their mother’s like, you know, weakness. So, [the Applicant] is definitely their pillar of strength. You know, [M1]’s pining for him bigtime now and that’s where you see that he’s committing a lot - a lot of actual self-harm with the injuries that he’s been sustaining lately and being taken to hospital. That’s his way of pining and, you know, reaching out for his dad because he’s just looking for him in any occasion or any - in any minute of the day, ‘Where is he? Where is he?’ and that’s - his self-harm is definitely something that’s of major concern. So, you know, if [the Applicant] was there, then these kids don’t rebel in that way. You know, they don’t - they don’t sustain injuries and you can see that from their past history that they never sustained such injuries as what they have been now.
[250]Transcript, p 78 [40]–[45]; p 79 [5]–[30].
As to how the Applicant’s removal from Australia would impact her and the Applicant’s family personally, Ms Terace said it would “kill” her and she “could not deal without him”.[251]
[251]Transcript, p 79 [35]. See also A4, p 4 [7].
[252]Transcript, p 80 [10].
[253]A4, p 4 [6].
Ms Terace said the Applicant is the strength in his family, the only make and the family would disintegrate without him.[252] Ms Terace said the Applicant is technologically illiterate and if he were removed, they would not be able to maintain a relationship, because they would be unable to see each other on the screen.[253]
During cross-examination, Ms Terace stated the following:
(a)Around the time the Applicant’s mother passed away, the Applicant asked her to leave their home and she stayed with a friend in Bedford for a couple of months.[254]
[254]Transcript, p 81 [5]–[25].
(b)The Applicant had asked her to leave, because:[255]
[255]Transcript, p 81 [30].
(i)the loss of his mother sent him “into a complete mayhem”;
(ii)he “went on a rampage of drinking and use of amphetamines”; and
(iii)his previous methamphetamine addiction of a few years[256] was escalating at that time.[257]
The Applicant also used drugs to cope with neck and back pain and issues from his childhood.[258]
(c)On occasion, she had seen the Applicant use methamphetamine once or twice a day at his property and she had taken it with him on occasion,[259] from about mid-2017,[260] to deal with her own personal issues.[261] Occasionally, other people would be present in the home and use drugs with them; however, she is no longer in contact with any of those people.[262]
(d)She was not addicted to methamphetamines[263] and had not used them since the week before the Applicant was incarcerated, on 10 December 2019. She has seen a GP and is seeing a psychologist in relation to her past drug use.[264] Both her own and the Applicant’s rehabilitation is incomplete and ongoing.[265]
(e)She was aware that the Applicant had firearms but never saw them inside the property, never asked him whether he held licences for those guns and never reported the existence of them to WA Police, as she was unaware of the protocol in that respect.[266]
(f)She had no idea which cars on the property were unregistered.[267]
[256]Transcript, p 82 [5].
[257]Transcript, p 81 [30]–[40].
[258]A3, p 6 [19].
[259]Transcript, p 82 [30]–[45].
[260]Transcript, p 83 [20]–[35].
[261]Transcript, p 84 [5].
[262]Transcript, p 87 [5]–[15].
[263]Transcript, p 83 [35]–[45].
[264]Transcript p 84 [15]. See also A4, p4 [13].
[265]Transcript, p 92 [25]–[35].
[266]Transcript, p 84 [20]–[45]. See also A3, p5 [18].
[267]A4, p5 [17].
As to her observations of the care of M1 and M2, Ms Terace said:[268]
(a)She has provided care to the twins whilst she has been with the Applicant and visits Ms Deworboies once or twice per week to see if she needs anything.[269]
(b)Over the period she lived at the Armadale property, the twins would visit every weekend or once per fortnight[270] and he would visit them at home on a daily or bi-daily basis.[271] That care did not stop during any period.[272]
(c)To her knowledge, the Applicant never drove a car with the twins in it or was ever under the influence of methamphetamine when he looked after them.[273] The Applicant hid his drug use from her until she became aware of it,[274] but to her knowledge, he was never “off his face”, at any level, around the children.[275]
[268]See also A3, pp 6–7 [25]–[27].
[269]Transcript, p 84 [45].
[270]Transcript, p 85 [5]–[10].
[271]Transcript, p 85 [15]–[20].
[272]Transcript, p 85 [10]–[15].
[273]Transcript, p 85 [20]–[25].
[274]Transcript, p 85 [30]
[275]Transcript, p 85 [30].

Neither party made any submission on this consideration and the Tribunal is satisfied that there are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Extent of impediments if removed (para 9.2 of Direction No. 90)
Paragraph 9.2 of Direction No. 90 states:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
In relation to the extent of impediments if removed, the Applicant submitted that this factors significantly weighs in favour of revocation of the Cancellation Decision because:[450]
(a)The Applicant suffers from depression and has been diagnosed with asbestosis, chronic obstructive pulmonary disease, deep vein thrombosis and other medical conditions. These conditions require ongoing care and treatment and the Applicant needs his family’s support to maintain his health and treatment regime.
(b)The Applicant’s health concerns will limit his ability to be employed in the UK and he will face homelessness.
(c)While the Applicant would have access to free health services in the UK (under the National Health Service), he would be significantly disadvantaged, without his family there to support his ongoing treatment and to assist him to in accessing the relevant health services.
(d)The Applicant’s mental health is of significant concern. While in the community, he used substance abuse as an unhealthy coping mechanism following his mother’s death. His mental health decline was apparent to prison officers while he was in prison. The Applicant desires to continue substance abuse treatment and counselling in the community and, given his fragile mental health, requires his family’s support to do so.
[450]A1 [160]–[166] and A2 [24]–[34].
At hearing, the Applicant’s representative raised the Applicant’s past suicide attempts and “extreme suicide” risk in the context of his comment at hearing that he would ‘probably kill himself’,[451] if he learned he was to be removed from Australia.
[451]Transcript, p16 [35]; p 101 [45].
The Respondent’s position, however, is that this consideration should not weigh in favour of revocation to the extent that it would outweigh the negative weight already apportioned to the other considerations, including three of the primary considerations. In support of this position, the Respondent submitted:[452]
(a)there is limited evidence before the Tribunal from which reliable factual findings can be made about the nature and extent of the Applicant’s reported health conditions, and the impact these conditions might have on his ability to establish a life for himself in the UK;
(b)although the Applicant claims he may face practical difficulties in accessing public services, there is no suggestion that the Applicant would not be entitled to the same social, medical and economic services available to other citizens of the UK;[453] and
(c)there is no suggestion that the Applicant would face any cultural or linguistic barriers in the UK.[454]
(d)The UK is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to the UK. However, the Tribunal notes that the Applicant does face some existing barriers with literacy and numeracy, due to his dyslexia.[455] In this regard, the Tribunal applies the decision of DJPM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1773 [146], which involved an applicant with a low IQ and learning difficulties. In her decision, Member Bellamy noted, referencing Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly:
It is likely that the Applicant will face some difficulty in re-establishing himself in the [UK] as he has some impediments and he does not have an existing social or support network there. He may find it difficult to secure accommodation and obtain a job or arrange income support. However, these difficulties would be short-term only and would not prevent him from successfully re-settling there.
[452]R4 [29].
[453]Citing para 9.2.1(c) of Direction No. 90.
[454]Citing para 9.2.1(b) of Direction No. 90.
[455]The Tribunal notes the Applicant refers to his having been diagnosed with dyslexia in para [8] of A1.
Having considered the available evidence and the parties’ submissions, the Tribunal considers that the Applicant would likely face significant emotional hardship at the prospect of returning to a country where, to his knowledge, none of his family members continue to reside and where he will not have family support in the treatment of his various health conditions. However, there is insufficient medial evidence before the Tribunal, including evidence from a psychologist or psychiatrist, as to what the Applicant’s present and future treatment needs are and the extent to which he would be in need of his family’s assistance in pursuing these.
While the Applicant may certainly prefer to navigate his return into the open community in Australian with the support of his family, if returned to the UK he has the benefit of having run his own business in Australia to assist him in finding employment in a similar industry, whether or not he was self-employed and would have similar access to services.
The Tribunal considers that any difficulties the Applicant would face in re-establishing himself in the UK, including those he faces due to his dyslexia would be temporary such that this factor weighs slightly in favour of revocation.
Impact on victims (para 9.3 of Direction No. 90)
Paragraph 9.3 of Direction No. 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In relation to the impact on victims consideration, the Applicant referred to Ms Hodgson’s evidence to the effect that she considers the Applicant a friend and holds no animosity towards him for his breaches of the violence restraining order she held against him.

The Applicant submitted that therefore, this consideration weighs in favour of revocation.[456]
[456]A1 [169].
In response, the Respondent submitted that the wishes of one victim of the Applicant’s offending, taken at their highest, are only capable of supporting an inference that there will be no negative impact upon that victim of a decision to revoke the Cancellation Decision. The Respondent submitted that that is a matter that should be found to weigh neutrally in assessing the impact of any adverse decision upon the victims of the totality of the Applicant’s offending.[457]
[457]R4 [31].
The Respondent submitted that there is otherwise limited, if not nil, evidence capable of attracting any positive or negative weight against this consideration. Accordingly, the Respondent submitted that this consideration should be found to weigh neither for nor against revocation.[458]
[458]R4 [32].
Having considered the evidence before it and the parties’ submissions, the Tribunal finds that this consideration does not arise, including in the context of Ms Hodgson’s evidence and is therefore neutral.
Links to the Australian community (para 9.4 of Direction No. 90)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties (para 9.4.1 of Direction No. 90)
Paragraph 9.4.1 of Direction No. 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant refers to an extensive body of evidence regarding his family ties in support of his contention that the strength, nature and duration of ties consideration should weigh heavily in favour of revoking the Cancellation Decision,[459] so much so that it, along with the best interests of minor children consideration should outweigh all remaining considerations.”[460] This evidence focuses on his relationships with various family members including Ms Terace, Ms Deworboies, Ms Bovell, his son Kevin and his father Gordon.
[459]A1, [170]–[201].
[460]Transcript, p103 [35].
The Tribunal does not seek to summarise this evidence here and notes it has considered the various letters, statements and statutory declarations from the Applicant’s family members in their entirety in the context of this consideration. In particular:
(a)the Applicant’s devastation should he be unable to visit his mother’s ashes in Australia, given their close relationship;[461]
(b)Ms Deworboies’ heavy reliance on the Applicant for support and her evidence regarding the potential impact on her health if he was removed;[462]
(c)Ms Terace’s reliance on the Applicant for the emotional and practical support and her impending need for alternative living arrangements should the Applicant be unable to return to their home. Ms Terace also gave evidence regarding the impact on the Applicant’s present circumstances on her mental health;[463]
(d)Ms Bovell is extremely distressed by the thought of the Applicant’s removal and cannot think about losing him;[464] and
(e)the Applicant’s ill father Gordon would lose the benefit of his support and care.[465]
[461]A1, [174].
[462]G13, p 93–96.
[463]A1, [185]; Transcript p 82.
[464]A3 p 19 [21].
[465]A3 p 2.
The Applicant’s submissions on the strength, nature and duration of the Applicant’s ties to Australia are:[466]
(a)The Applicant has lived in Australia for 49 years, being most of his life and this should be a significant factor weighing in favour or revocation of the Cancellation Decision.
(b)The Applicant’s positive community contributions should be given appropriate weight. These contributions are being employed and being involved in raising his children, nieces, nephews and great-nieces and great-nephews.
(c)The Applicant is committed to continuing his employment and his medical treatment in Australia if released.
[466]A4 [202]–[205].
At hearing, the Applicant’s representative added:[467]
[Ms Terace] … did comment on the fact that… if it was possible she would relocate to the UK to be with her partner. That’s the strength of this relationship. However, also, that’s not currently a practical and realistic possibility. Now, the applicant’s sisters, Natasha and Linda, also gave evidence today about how vital their brother is.
It seems that [Kevin’s] already made arrangements to leave the family home, which in turn places even more stress on the twins’ mother. Now, [Ms Deworboies] will be - second probably to the twins – the most impacted by this decision. She is the primary carer for [M1 and M2], and without their help, she is clearly struggling.
[Ms Deworboies] faces physical harm (indistinct) the twins….She hasn’t had appropriate respite which someone who is the primary carer for twin boys needs… The respite that she was able to access even pre-COVID wasn’t enough on its own. She needs the applicant to help her.
[467]Transcript, p 102 [30]–[45]; p 103 [5]–[35].
As to the Applicant’s ties to Australia, the Respondent submitted that it accepts that this consideration should weigh in favour of revocation, but that it should not weigh to an extent that would overcome the countervailing negative weight arising from the other considerations that are engaged.[468] In support of that submission, the Respondent relied upon the following:[469]
(a)The Applicant has resided in Australia for nearly his entire life, having arrived as a young child at the age of 2 years old and he has not left the country, and his formal history of criminal offending began some 16 years later in 1988.[470]
(b)The Applicant’s formal history of criminal offending spans 1988 to 2020 such that there is a limited period of time in which the Applicant could be found to have spent contributing positively to the community and this may limit the favourable weight that may be attributed to the fact that he has resided in Australia for almost his entire life, although his positive contributions via employment and through his family should not be understated.[471]
[468]R4 [34].
[469]R4 [34].
[470]Citing para 9.4.1(2)(a)(i) of Direction No. 90.
[471]Citing para 9.4.1(a)(ii) of Direction No. 90.
At hearing, the Respondent’s representative added:[472]
Now, there’s a number of ties to the Australia community that have been raised. Each of these ties should be given consideration and weight by the tribunal in support of the applicant’s case, however there’s real questions, in my submission, before the tribunal about whether the family would continue to provide the support that they have provided, if they were made aware of the full extent of the criminal offending here.
Certainly, they’ve given an unconditional promise of support, and they’ve given evidence that that support hasn’t wavered. But all witnesses - but for Ms Terace, who it appears has been involved in the preparation of the legal case - none of them have an awareness of the full extent of the criminal offending. None of them seemed to have an awareness of the full extent of the drug use. It’s difficulty potentially for the tribunal to accept that those ties will remain in place, if they were ever to be informed of the nature and the length and the gravity of the seriousness of the offending that is in issue here.
…
You’ll see that the most important relationships that Mr Guttridge has are his relationships with his current partner, Ms Terace, who, when questioned, did accept that she would look into taking steps to follow him to the UK. Questions of practicality aside, the intentions there that, in my submission, it may very well be that she would follow him… The other (indistinct) relationship is that of Ms Deworboies and the mother of the children. It’s clearly a difficult matter for the tribunal to confront, but if the children were to be put up into state care, if it did become too much for Ms Deworboies, then it really seems that there’d be little left for the applicant and Ms Deworboies to resolve.
Their relationship seems to be based purely on the relationship that they have with their two children and the evidence is, effectively, that if Mr Guttridge is returned to the UK, Ms Deworboies won’t be able to continue looking after the children. What relationship would be left between Mr Guttridge and Ms Deworboies and if we’re looking at matters that could be given significant weight as my friend would ask the tribunal to do.
…
(Emphasis added).
[472]Transcript, p 112 [25]–[45]; p 113 [5]–[35].
The Tribunal has considered the evidence and the parties’ related submissions and finds that the present consideration weighs moderately in favour of revocation of the Cancellation Decision, for the following reasons:
(a)The Tribunal accepts the Applicant has lived in Australia for most of his life and did not commence offending until approximately 16 years later. However, since that time the Applicant has committed 127 offences consistently over a 32-year period and without any meaningful period of no offending. This, in the Tribunal’s opinion, minimises any positive community contributions the Applicant has made via his employment and with his family, including M1 and M2.
(b)The Tribunal is prepared to accept from the evidence that the Applicant has strong ties with his adult children, his sister and half-sisters and his extended family generally.
(c)The Tribunal accepts his relationship with Ms Deworboies is of significant duration, however it is, as the Respondent notes, based on the relationships they share with M1 and M2. It is therefore difficult for the Tribunal to forecast the strength and nature of their future relationship, in circumstances where the longer term care needs of M1 and M2 are uncertain, and where Ms Deworboies plays the key parental role in terms of M1’s and M2’s access to therapies and disability services.
(d)The Tribunal accepts that the Applicant’s strongest relationship and ties are with Ms Terace, whom, if she was in the financial position to do so, would be prepared to follow the applicant to the UK if removed.
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
Paragraph 9.4.2 of Direction No. 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The parties concede and the Tribunal is satisfied that this factor is not relevant in the present case and should be given no weight.
The Tribunal is satisfied that, taking into account the matters identified in paras 9.4.1 and 9.4.2 of Direction No. 90, this consideration weighs moderately in favour of revocation of the Cancellation Decision.
CONCLUSION - THE WEIGHING EXERCISE
As to how to apply the primary and other considerations in Direction No. 90, the Tribunal in guided by Deputy President Boyle in Wightman:
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …
(Emphasis added, footnotes omitted).

The Tribunal follows the approach directed by the above cases.
As to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 90), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras 124–153 above, the Tribunal has found that given:
(a)the nature and seriousness of the Applicant’s conduct to date is “very serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and
(b)the “very serious” nature of the harm and the moderate to high risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs very strongly against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 90), the Applicant engaged in family violence (see paras 154–164 above in this regard). Therefore, and also for the reasons set out in para 165 above, this primary consideration moderately against revocation of the Cancellation Decision.
With respect to the third primary consideration, the best interests of minor children in Australia (para 8.3 of Direction No. 90), the Tribunal has found that for the reasons set out in paras 166–199 above:
(a)The best interests of the M1 and M2 weigh strongly in favour of revocation of the Cancellation Decision.
(b)The best interests of the Applicant’s niece and nephew and great-nieces and great-nephews weigh moderately in favour of the Cancellation Decision being revoked.
The fourth primary consideration, the expectations of the Australian community (para 8.4 of Direction No. 90), as it must and as is the “norm,” weighs strongly against revocation of the Cancellation Decision. For the reasons set out at paras 200–208 above, significant weight should be given to this primary consideration.
In relation to the “other considerations” identified in para 9 of Direction No. 90:
(a)International non-refoulement obligations are not relevant in this matter (para 9.1 of Direction No. 90).
(b)The extent of impediments if the Applicant were removed from Australia is a factor weighing slightly in favour of revocation (see paras 212–218 above) (para 9.2 of Direction No. 90).
(c)The impact on victims consideration does not arise and is therefore neutral (para 9.3 of Direction No. 90).
(d)The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being:
(i)the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh moderately in favour of revocation of the Cancellation Decision (see paras 225–232); and
(ii)the impact on Australian business interests (para 9.4.2 of Direction No. 90), which has no relevance to the present matter;
indicate that this consideration overall weighs moderately in favour of the revocation of the Cancellation Decision.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the considerations weighing against revocation are, prima facie, balanced with those weighing in favour revocation.
There is extensive factual material which weighs heavily in the Applicant’s favour, in relation to interests of his minor children, particularly M1 and M2, the effect on his partner and family should he be deported and his strong familial ties to Australia. The Tribunal also recognises the difficulties the Applicant would face in re-establishing himself in the UK with no family support, unmet treatment needs, his physical and mental health conditions, his dyslexia and what the Tribunal has found to be a moderately to highly likely relapse into drug use. These Tribunal extensively and repeatedly turned its mind to these matters at hearing and also while reaching its decision.
Despite the significant weight of the factors in the Applicant’s favour, and the consequences the Applicant being removed from Australia and returned to the UK, the Tribunal is nonetheless of the strong view that:
(a)the protection of the Australian community from future harm from the Applicant’s future offending or other serious conduct is a factor which, along with:
(b)the expectations of the Australian community and
(c)the seriousness of the concerns held by the Australian Government in relation to family violence, as expressed in Direction No. 90,
weigh against the Applicant so strongly as to overcome the factors weighing in the Applicant’s favour.
Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 12 April 2021, not to revoke the mandatory cancellation of the Applicant’s class BF-C Transitional (Permanent) visa pursuant to 501CA(4) of the Act is affirmed.

I certify that the preceding 247 (two hundred and forty-seven) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

..............[sgd]..........................................................
Associate
Dated: 5 July 2021

Date of hearing: 15 June 2021

Solicitors for the Applicant: Ms J Angel, Estrin Saul Lawyers

Solicitors for the Respondent: Mr A Downie, Minter Ellison

The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.

See s 501CA(4)(a) of the Migration Act and [12] above.

[2021] AATA 2099

5 July 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Remedies

Date of hearing:	15 June 2021
Solicitors for the Applicant:	Ms J Angel, Estrin Saul Lawyers
Solicitors for the Respondent:	Mr A Downie, Minter Ellison