Hammond and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 379

Hammond and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 379 (11 April 2025)
Applicant/s:  Dean Hammond
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/0994

Tribunal:Deputy President O'Donovan
Place:Brisbane
Date of Decision: 11 April 2025
Date of Reasons: 15 April 2025

Decision:Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal sets aside the decision made by a delegate of the respondent dated 7 February 2025, and substitutes a decision that the cancellation of the applicant’s visa is revoked.

Damien O’Donovan
........................................................................
Deputy President O'Donovan
Catchwords
MIGRATION – whether to revoke the mandatory cancellation of applicant’s visa – character test – substantial criminal record – drug offences – perjury – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – extent of impediments if removed – citizen of New Zealand – five years demonstrated good behaviour while free in the community – decision under review set aside and substituted with a decision to revoke the visa cancellation
Legislation
Migration Act 1958 (Cth) ss 499, 500, 501.
Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
Secondary Materials
Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

The applicant was born in New Zealand in 1966. The name Dean Hammond appears on his birth certificate, but after his mother remarried when he was 4 years old, he was always known as Dean Scott. He lived in New Zealand until the age of 19, when he emigrated to Australia to pursue a career in rugby league. He achieved some success in that area, but never broke through into a permanent first grade role.
From the moment he arrived in Australia he was using drugs, particularly marijuana and speed. Initially his habit was contained. Around 1991, he moved to the Sunshine Coast to take up a contract with the Noosa Pirates. Soon afterwards, he met Peta Richards with whom he would have two children. When he stopped playing rugby league he purchased a business on the Sunshine Coast.
He remained a user of recreational drugs but could function well both as a family man and as a business owner. However, eventually he was introduced to methamphetamine and the rot set in. His marriage broke up, his relationship with his children suffered and when his addiction was out of control, he became involved in drug distribution.
In 2017, he was charged with one count of trafficking in a dangerous drug, serious organised crime, six counts of perjury and a number of other lesser drug-related offences. He was granted bail and remained in the community for a period of five-and-a-half years. He was eventually convicted and sentenced in 2023. As a result of serving a sentence of more than 12 months his visa was mandatorily cancelled on 19 May 2023.
On 22 May 2023, the applicant made representations seeking revocation of the cancellation of his visa. On 7 February 2025, the delegate decided not to revoke the cancellation decision. On 13 February 2025, the applicant lodged an application in the Tribunal for a review of the delegate’s decision.
The Tribunal has jurisdiction under section 500(1)(ba) of the Migration Act 1958 (‘the Act’) to review the decision.
Section 501CA(4) of the Act provides that the Minister may revoke the cancellation decision if, following representations, the Minister is satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
The applicant concedes that he does not pass the character test. The only question in issue is whether I should be satisfied that there is another reason why the original decision should be revoked.
In considering that question, the Tribunal must have regard to the matters contained in a ministerial direction issued under section 499 of the Act. The relevant direction is Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was executed on 7 June 2024 and commenced on 21 June 2024 (‘the Direction’). Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9 when I am considering the question of whether there is another reason why the original decision should be revoked.
The discussion below of the principles and considerations I must take into account under the Direction is drawn largely from one of my earlier decisions on this issue, but it has been revised to appropriately reflect the circumstances of this case.
The Direction is divided into 'primary' and 'other' considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The protection of the Australian community consideration should generally be given greater weight than other primary considerations and primary considerations should generally be given greater weight than other considerations. There is however scope to give greater weight to other considerations in appropriate circumstances, and similar flexibility is available in the relative weighting of primary considerations.
The primary considerations are:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
The other considerations are:
(a)The legal consequences of the decision;
(b)The extent of impediments to the applicant establishing and maintaining basic living standards if removed from Australia; and
(c)The impact on Australian business interests.
I am also required to consider any other considerations raised by the applicant.
The Principles set out in paragraph 5.2 of the Direction make it clear that the safety of the Australian Community is the highest priority of the Australian Government. 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. The Australian community expects that the Australian Government can and should cancel non-citizen's visas if they engaged in conduct, in Australia, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. With respect to a decision to revoke a visa cancellation, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. 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 the revocation of a visa cancellation. The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify the revocation of a visa cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Having considered each of the considerations and weighed them appropriately, I have decided that the decision under review should be set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.
My reasons for that decision are set out below.
Evidence before the Tribunal
The material in the following schedule was taken into evidence:
Exhibit           Description
G-Documents Section 501 'G' Documents,
A1   Statement of Dean Scott date 24 March 2025
A2   Letter from Peta Richards dated 9 March 2025
A3   Letter from Taylor Scott Bianchi dated 9 March 2025
A4   Letter from Kurt Scott, undated
A5        Letter from Amanda Wiggs dated 13 March 2025
A6   Letter from John Wanneck dated 10 February 2025
A7   Letter from Dean Carmichael dated 11 March 2025
A8  Letter from Darren Palmer dated 10 March 2025
A9  Email from Wayne Phillis dated 4 March 2025
A10       Letter from Sharon Seymore dated 9 March 2025
A11       Letter from Daniel Soundy dated 10 March 2025
A12       Report of Greg Hutcheon, Psychologist dated 17 March 2025
A13   Bundle of documents from the ‘Circuit Breaker’ course (4 pages)
A14Bundle of certificates and exit report from ‘HSI Explore’ program (6 pages)
R1Bundle of Material produced under summons from Queensland Police Service (53 pages)
The following witnesses gave oral evidence for the applicant:
(a)The applicant, Mr Dean Scott;
(b)Ms Peta Richards;
(c)Ms Taylor Scott Bianchi;
(d)Mr Daniel Soundy;
(e)Kurt Scott;
(f)Zach Bianchi;
(g)John Wanneck;
(h)Darren Palmer; and
(i)Wayne Phillis.
The respondent cross-examined each of the witnesses called by the applicant except for Zach Bianchi.
Fact finding principles
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection[1] (‘HZCP’) at [68], that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'. The Full Court made clear that a person who makes representations in favour of revoking the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.
[1] [2019] FCAFC 202.
I do note however that the Applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP. The principles are stated concisely in the following passage from Secretary to the Department of Justice and Regulation v LLG, cited with approval by Bromberg J:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[2]
[2] [2018] VSCA 155, [42].
In this matter, I am therefore bound by the essential findings made in relation the convictions that landed the applicant in prison in 2023. In relation to the ‘trafficking in dangerous drugs-serious organised crime’ charge, the applicant was sentenced to seven years imprisonment. In relation to the perjury charges, the applicant was sentenced to 12 months in prison. Both sets of charges provide a basis for the applicant’s failure of the character test and the visa cancellation.
In relation to the applicant’s other criminal charges, I do have some freedom to depart from the findings made in relation to the crimes the applicant was convicted of, but it would be unusual to do so.
Facts
My findings of fact are set out below. Where a finding is controversial, I have referenced the evidence on which the finding is based.
The applicant was born in New Zealand in 1966. He has a Maori/Anglo background. He grew up in a tough area of Aukland that had a strong criminal gang culture. His biological father left the home before he was four years old. He had one younger brother at the time. His mother re-partnered and had another son with the applicant’s stepfather. His stepfather was frequently violent towards his mother.
The applicant left New Zealand in 1985 on a scholarship with the Manly-Warringah Rugby League Club. By the time he left New Zealand, the applicant was already a user of marijuana. Upon his arrival in Australia, he was introduced to the drug speed which he used both recreationally and on the basis that it may result in enhanced sporting performance. In 1988 and 1990 he was dealt with by the Manly Local Court for mid-range drink driving offences.
The applicant was unable to break into the first-grade team at Manly and shifted to teams in South-East Queensland. In 1995, at the age of 29 he played his last season of Rugby League for the Noosa Pirates. By this time, he had met Peta Richardson. The relationship commenced around 1992. In 1995, their first child Taylor was born and in 1996, their second child Kurt was born.
By all accounts, for the following decade the applicant was a family man. He owned a spring-water delivery franchise and was the primary breadwinner for the family. His children remember him as a reliable dad who attended sporting fixtures and school events. However, he was addicted to cannabis and an almost daily user. Ms Richardson noted that his drug use at this point did not seem to interfere with how he functioned, and he remained able to work and fulfil his family obligations despite regular usage.
In the mid-2000s, the applicant sold the spring-water franchise on reasonably favourable terms and went to work initially for a construction firm and then for the local council. Around this time the applicant was introduced to methamphetamine. Initially, he was able to control his use and restricted it to weekends. However, as the decade progressed his use began to increase and it began to interfere with his important relationships. He became less family-focussed. In October 2009, he was dealt with in the Maroochydore Magistrates Court for possessing a dangerous drug and possessing drug paraphernalia.
In 2011, the applicant was asked to leave the family home. He was no longer a reliable partner or parent, and he was a heavy and regular drug user. He moved a couple of times and ended up in a room at a resort where he stayed until his incarceration in 2023.
Around 2014, he became involved with a woman called Jodi, who was considerably younger than he was. The relationship appears to have been volatile in the sense that they regularly broke up and re-united. The applicant gave evidence that there was never any violence during the relationship. They did, however, use drugs together and the applicant loaned her significant sums of money. When she refused to pay it back, the applicant sent her an email, the contents of which he could not now remember. The email appears to have been threatening. The result of the email was that Jodi applied for and was given a temporary domestic violence order. It was served on the applicant by the police. It was varied on 16 December 2015 at the Brisbane Magistrates Court. The order was varied by the Magistrate in the applicant’s presence. It included a condition that the applicant was prohibited from contacting Jodi or asking someone else to contact her.
On 30 December 2015, the applicant arranged for a bunch of flowers to be delivered to Jodi’s home in Brisbane. The card attached to the flowers said ‘you did what you think you had to do so why don’t you and little B come watch fireworks with me. No one has to know’.
The applicant was charged and convicted of contravening a domestic violence order on 23 February 2015. He was given a good behaviour bond.
By 2017, the applicant was involved in the distribution of drugs. He was however also still working for the council. In the first part of the year, he used his council-issued fuel card to purchase fuel for his son on four separate occasions. This crime was discovered because the police were tapping his phone to get information about his drug-related activities.
The information I have about the applicant’s involvement in drug distribution is sparse. The agreed statement of facts which set out the factual foundation for his sentencing appears not to have been obtained under summons, so I only have access to the transcripts of the sentencing proceedings which provide little in the way of factual detail. The only useful information that the transcript conveys is the following:
There’s no evidence or suggestion from anybody else that has given evidence, or co-operation, that my client actually used violence on anybody. He talked a big game, but that was to keep himself enamoured with Simpson [his co-conspirator] who was providing him primarily with free methylamphetamine and with some money on occasion.
The applicant himself conceded little more than that he drove around with the organiser of the operation when asked and whenever he agreed to do so, he was supplied with methamphetamine. On his version of events, the applicant only later realised that his physical presence was being used to intimidate drug purchasers to settle drug debts.
Despite this limited involvement, the applicant was also given a motor vehicle by the organiser of the syndicate.
The applicant also appeared to repeat in his evidence to the Tribunal a statement similar to the one that resulted in one of his convictions for perjury, namely that he only had one client to whom he supplied drugs.[3]
[3] Exhibit R1, 44.
For whatever reason, the respondent did not seriously question the applicant’s claims of very limited involvement in the drug distribution network in cross-examination or in closing submissions, so detail on those matters remains sparse and largely limited to the applicant’s version of events which in my assessment was far from the complete picture. Consequently, it is difficult to make any definite specific findings beyond noting that the applicant had sufficient involvement to justify a sentence of seven years.
The facts after the applicant’s arrest are clearer.
In November 2017 the applicant was arrested, charged and then released on bail.
Once released, the applicant went and saw his former partner, Ms Richardson, and asked for help. She indicated that she would help but would provide no assistance unless the applicant stopped using drugs. If he didn’t stop using drugs his family would turn their back on him.
The applicant agreed to this and immediately went ‘cold turkey’. He has not used any illegal drugs since and avoids even over-the-counter pain killers like Panadol.
Presumably as a result of the fraudulent use of the fuel card, the applicant ceased work with the council. He did however pick up a job with Suncoast Asphalt. While on bail, he devoted himself to that work, working up to 70 hours a week. He arranged for Ms Richardson to take over his finances. He took a small amount to live on and she arranged to save money and pay his bills. He reconnected with his children. His daughter drove him to the Queensland Magistrates Early Referral into Treatment (‘QMERIT’) program, which was a requirement he had to meet to remain free on bail. He was regularly drug tested and never failed a test.

Over the course of the next five years, the applicant worked well enough in his job to be promoted. He was frank with his employer about the charges that were hanging over his head. He cut himself off from any former associate who used drugs. He built a small circle of friends and focussed on work and his family. He was regularly drug tested and never failed a test.
His daughter had her first child a few weeks before the applicant went to prison.
The applicant’s behaviour in prison was exemplary. He became involved in a men’s group and undertook a five-month ‘HISI’ drug rehabilitation program which once completed allowed him to be transferred to a minimum-security facility. He was released on parole eight weeks later. The applicant’s parole will not expire until 2031. The terms of his parole require him to live with Ms Richardson and to be at her home between the hours of 9 pm and 5 am. He will be regularly drug tested as a condition of parole.
If released from immigration detention, the applicant has been promised work by his former employer and it is expected that when the applicant resumes work, that some additional workers will be able to be employed as a result.
The applicant has type II diabetes and needs a knee reconstruction. He is otherwise reasonably well for a man in his late 50s.
CONSIDERATION
Primary considerations
Protection of the Australian Community
When examining this consideration, I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
I need also to give specific consideration to:
(a)The nature and seriousness of the applicant's conduct to date; and
(b)The risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h). I apply these factors as follows.
I am not satisfied that the applicant’s crimes and conduct fall into either of the identified categories of ‘very serious’ or ‘serious’ crimes listed in the Direction. His crimes are not violent or sexual. While the applicant is described in the sentencing remarks as an ‘enforcer’ it is also noted in the transcript (and not demurred from in any sentencing remarks) that ‘there is no evidence from anybody…that [the applicant] actually used violence on anybody’. The account given by the applicant in his evidence, which was not seriously challenged by the respondent, is that he did not use violence against anyone and his direct contact with customers of the drug syndicate was limited.
I am not satisfied that the applicant engaged in ‘acts of family violence’.
Family violence in the Direction is defined to mean:
…violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member),or causes the family member to be fearful. Examples of behaviour that may constitute family violence include…stalking.
I do not consider the applicant sending his girlfriend flowers and a note on one occasion constituted stalking. Equally, I am not satisfied that the sending of the flowers constitutes ‘other behaviour that…causes the family member to be fearful’. It was undoubtedly a breach of the domestic violence order and in that sense the charge and conviction were appropriate, but without any additional evidence as to his girlfriend’s reaction, I could not be satisfied that the action caused her to be fearful.
Separate from that breach is the conduct that caused Jodi to apply for the domestic violence order in the first place. I have very little evidence on that issue apart from the bare fact that the order was made. The applicant did however give evidence about the circumstances in which the order was sought and ultimately not resisted by him. His evidence was that:
(a)Jodi owed him money;
(b)he sent her an email about the issue and this email prompted her to seek the domestic violence order;
(c)he was served with the domestic violence order but did not have the kind of money necessary to challenge the claims of domestic violence;
(d)as he did not have any shared assets or children with Jodi the more sensible approach was to allow the order to be made;
(e)there is no other evidence about the reasons for the order being sought.
In these circumstances it is difficult to make findings about whether the applicant engaged in conduct that made Jodi fearful. Given how seriously adverse a finding of family violence would be to the applicant’s prospects of a more favourable visa decision, I am not prepared to make a finding that the applicant engaged in family violence on the minimal evidence that is available.
Accordingly, the applicant’s conduct does not fall into any of the categories in the Direction that I am obliged to treat as ‘very serious’.
It should however be treated as serious. The conduct resulted in a custodial head sentence of eight years, which indicates the seriousness of the conduct.
Assisting with the large-scale distribution of very dangerous drugs like amphetamines is a serious crime. The applicant knew at the time the destructive power of the drugs but to fuel his own habit he teamed up with others to distribute them even further into the community. He received benefits for doing so, which included drugs and a vehicle.
He lied to authorities about his own involvement in the scheme and drug distribution generally. These constitute crimes committed against a government official in the performance of their duties (factor (b)) and I am obliged to treat them as serious. .
The applicant had a significant custodial sentence imposed which indicates the seriousness with which the community regards the offending (factor (c)).
The victims of the applicant’s crimes are the people in the community whose lives were wrecked by the drug distribution network his conduct supported and facilitated. While I am satisfied that the applicant’s own drug addiction meant that he was not in his right mind when he engaged in the criminal conduct, his crimes did have victims and that fact should be acknowledged (factor (d)).
The applicant was an infrequent offender. His criminal record begins in 1988 and is very intermittent. His offending did increase in seriousness over time with a series of serious offences committed in 2017. However, the applicant did not commit another crime after that. The evidence indicates that for most of his life the applicant was a drug user and not a criminal. While in the grip of a serious drug addiction he became involved in drug distribution and fraud. When he was discovered, he stopped all drug use and has been clean ever since. He had more than five years to commit further offences but did not do so. His behaviour since November 2017 has been exemplary. There was a trend of increasing seriousness in his criminal offending, but that trend came to an abrupt halt in 2017 (factor (e)).
There has been no cumulative effect of repeated offending (factor (f)).
The Applicant has never provided false or misleading information to the Department (factor (g)).
Factor (h) is not relevant.
The applicant committed some driving offences in New Zealand (factor (i)).
Considering all of these factors, the conduct is serious.
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community, I must have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. The applicant's criminality is not of that kind, but drug distribution is such a serious crime and so damaging to the community that if there was much risk at all of the conduct re-occurring it would be inappropriate to release the applicant into the community.
In assessing the risk to the community, I have had regard to the factors identified in paragraph 8.1.2(2) of the Direction. I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in further criminal conduct, taking into account the applicant's risk of reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence. My analysis is as follows.
Nature of the harm from further criminal conduct
The harm to others should the applicant engage in further conduct of a criminal or serious nature includes the widescale use of very harmful drugs that ruin people’s lives, families and impose very serious risks to users’ mental and physical health.
Perjury is also a serious crime. It impedes the work of law enforcement and damages the operations of courts and administrative bodies. It damages the functioning of important institutions and it imposes costs on the rest of the community due to the need to undertake expensive investigations to expose the dishonesty of persons like the applicant.
Both forms of criminality, if repeated, would result in harm to individual Australians and the Australian community more generally.
Likelihood of further criminal conduct
I am satisfied that the risk of the applicant engaging in further criminal or serious conduct should be assessed as very low.
The applicant was very fortunate that in his case, the criminal justice system worked slowly, and the bail system allowed him to circulate freely in the community for a period of more than five years. This gave him an opportunity to demonstrate in the most tangible way possible that he was reformed and was capable of behaving in pro-social ways with minimal risk of a relapse into drug use.
From late 2017 following his arrest, the applicant completely re-ordered his life. He immediately stopped taking drugs entirely without assistance from any rehabilitation program. An ultimatum from his family that they would turn their back on him if he returned to drugs but would support him if he remained clean, had a stunning effect on him. He has not taken drugs since that day. He has been regularly drug tested both in the community and while in prison and never failed a drug test. People who worked with him and members of his family all are certain that he has not touched drugs since deciding to turn his life around at the end of 2017. The fact that the applicant has been able to stay clean for such an extended period of time in every kind of environment, including while free in the community, in prison and in immigration detention gives me confidence that he will not return to drugs. If the applicant is not addicted to drugs, there is no reason to think that he will return to criminality.. In one way or another, all of his recent crimes have been associated with drug use or occurred in periods when he was affected by significant drug use.
The fact that the applicant will be on parole until 2031 is a further factor which renders it very unlikely that the applicant will commit further crimes. If the applicant breaches his parole conditions, he will be returned to prison to finish his sentence. Possession of drugs or the failure of a drug test will result in further jail time. This creates additional incentives for the applicant to stay clean.
Methamphetamine is a pernicious drug and it is always difficult to be confident that relapse is not a significant risk. The applicant however enjoys a unique array of protective factors which support his own internal determination to live without drugs for the rest of his life.
Despite this assessment, the consideration still weighs against the applicant having his visa restored to him.
Family violence committed by the non-citizen
For the reasons stated at [‎55] to [‎58], I am not satisfied that the applicant has committed family violence. This factor is neutral.
Strength, Nature and Duration of Ties to Australia
This consideration weighs very strongly in favour of revoking the visa cancellation.
The applicant has two grandchildren who he is close to. I will discuss those relationships in more detail when I consider the best interests of minor children consideration.
The applicant came to Australia in 1985. He has left only for very brief periods since. His ties to Australia are very strong. The applicant’s two adult children live in South East Queensland. He has a close relationship with both. While he did everything he possibly could to ruin his relationship with them and their mother when he was addicted to drugs, the way in which he has gone about rebuilding those relationships is impressive. His daughter’s evidence on this was particularly compelling. It is clear that she values the relationship she has with her father and would be devastated if he were deported. The applicant’s relationship with his former partner, Ms Richardson, is also extremely close. Ms Richardson is willing to house the applicant while he is on parole thus ensuring he is able to comply with his bail conditions and have housing stability. All his immediate family, including his son who was affected by some of his father’s worst behaviour, all speak well of him, see him regularly and report on him as a positive influence in their lives.
The applicant has also built close and productive working relationships since 2017. His co-workers speak highly of him. The company he worked for between 2018 and 2023 has held open a job for him and the managers of the business hope and expect he will be able to return to work with them if he is released into the community. The regard they have for the applicant is such that they visited him during his period of incarceration.
The applicant has also maintained some old friendships but appears to have been selective in the ones he has maintained. This ensures that he is not exposed to temptation in relation to drug use. When he was free in the community the applicant’s focus was on building bonds with his family, performing well at work and maintaining a limited number of old friendships. The picture that emerged from the evidence is of a man with deep ties to the Australian community. Deportation would remove him from every important relationship he has in the world.
Best interests of minor children in Australia
I must determine whether revocation of the cancellation is or is not in the best interests of a minor child affected by the decision. There are two minor children affected by the decision: the applicant’s grandson who I will refer to as ‘LB’ and his granddaughter ‘IB’. I am satisfied that a cancellation is not in the best interests of either child.
Under the Direction, I am obliged to give each child’s interests individual consideration to the extent that they may differ. In this case the interests are sufficiently close that I will deal with them together. Both children are grandchildren of the applicant through his daughter Taylor.
In considering the best interests of minor children, specific factors must be considered if they are relevant. My consideration of the relevant factors is as follows:
Nature and duration of relationship
LB and IB are the applicant’s grandchildren.
LB was born two weeks before the applicant went to prison in 2023. IB was born the following year. Even though the applicant has been in prison or in immigration detention for most of his grandchildren’s lives, he has been able to develop a surprisingly close relationship with them. Their parents have gone to significant efforts to build the connection. Much of the relationship is online through regular Facetime calls, but their parents have also taken the children to immigration detention to visit their grandfather.
As a result, they know and love their grandfather. Those who have observed the applicant interact with his grandchildren comment on how loving the relationship is and how positively the children react to him both when he is physically present and when he appears online.
Positive parental role in the future
The applicant is not LB or IB’s parent. That role is fulfilled by their biological parents.
Impact of prior conduct and likely future conduct
Apart from the fact that the applicant's offending led to the applicant being physically absent from their life, there is no evidence that this has had a negative impact on them. Given that the applicant is now clean and very likely to remain so, there is no reason to think his past behaviour will have adverse consequences.
The effect of separation
The evidence establishes that if the applicant is removed to New Zealand, then it is likely to have an adverse impact on his grandchildren. They currently enjoy opportunities for physical contact with their grandfather which they enjoy. He has also been, for the last eight years, a strong and positive influence on his broader family. Removal to New Zealand would deprive them of someone who is now closely engaged with them and a positive influence. If the applicant were deported I am confident that there would still be regular contact over Facetime.
Others who fulfil a parental role
The children’s parents fulfill the parental role.
Views of the children
The children are too young to provide their views.
Risk of exposure to family violence or other neglect
The are no issues of abuse or neglect in any way connected with the applicant.
Experience of trauma
The applicant’s grandchildren have not suffered any trauma as a result of their interactions with the applicant.
This consideration weighs in favour of revoking the cancellation of the applicant's visa.
Expectations of the Australian Community
As the Direction makes clear, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. As a person who has assisted a drug distribution network who has committed perjury, the applicant has not met this expectation.
The Direction goes on to say that visa cancellation may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should not continue to hold a visa. The nature of the applicant's crimes do not fall into that category.
These expectations apply regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
This consideration weighs strongly against revoking the cancellation of the applicant's visa. The applicant's breaches of the law are so serious that the expectation of the community is that he would not be allowed to stay in Australia.
OTHER CONSIDERATIONS
Legal consequences of the decision
This consideration is not relevant.
Extent of Impediments if Removed
I am also obliged to consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), 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.

The applicant is a citizen of New Zealand. There are no substantial language or cultural barriers which the applicant will experience living there. He lived there until he was 18 and so he will be familiar with the society and how it functions. He has a brother and a half-brother there who he is in contact with but who may not be in a position to provide any support.
The applicant is physically well but has type II diabetes and will soon need a knee operation. There is no reason to think that he will not be able to access the medical care that he needs if he were deported to New Zealand or that he will not be able to work. This consideration does not weigh in favour of revocation.
Impact on Australian business interests
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 sections 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While I heard evidence that the applicant was a highly valued employee prior to his incarceration and that his employer is keen to re-engage him, their does not establish that there would be a significant compromise of the delivery of a major project or important service in Australia if the applicant were deported.
This consideration is neutral.
CONCLUSION
Informed by the principles in paragraph 5.2 of the Direction, I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision.
The following considerations weigh in favour of a decision not to revoke the cancellation of the visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The expectations of the Australian community.
The following considerations weigh in favour of revoking the cancellation:
(a)The strength, nature and duration of the applicant's ties to Australia;
(b)The best interests of minor children;
The family violence consideration, the impediments the applicant may face if deported consideration, and the impact on Australian business interests consideration are all neutral.
In most circumstances, primary consideration 8.1 would be given greater weight than other primary considerations and primary considerations would generally be given greater weight than the other considerations which would mean that the decision to refuse to restore the applicant’s visa should be upheld. However, this case is very unusual. The applicant spent more than five years free in the community after his arrest for the serious offences that underpin his visa cancellation. The offences he committed occurred against a background of serious drug addiction. In the five years he was free in the community, and in the seven and a half years since his arrest, he has not taken any drugs. That is a conclusion that can be reached with a very high level of certainty given the drug testing regimes he has been subject to. He has completely rebuilt his family life and working life.
Because of the long delay in the applicant’s case going to trial he was given a rare extended opportunity to demonstrate how completely he had changed. Rare as such opportunities are, it is even rarer for an applicant to take that opportunity and spend the time given to them in the community proving that they can be trusted to do the right thing, make a contribution and avoid crime in the future. The applicant has done all those things.
In such circumstances, I have decided that it is appropriate to give different weight as between the considerations that would generally be appropriate. I have decided that the strength, nature and duration of the applicant’s ties to Australia should be given greater weight which tips the balance in favour of setting aside the decision under review because there is another reason which makes it appropriate to exercise the power to revoke the visa cancellation.
Dates of hearing:   10 and 11 April 2025
Solicitors for the Applicant:                FC Migration
Solicitors for the Respondent:           Mills Oakley