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

Harris & Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2578 (30 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2936
Re:Nathan Harris
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:30 July 2020
Place:Brisbane

The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.
..............................[SGD]..........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
30 July 2020
INTRODUCTION

Mr Harris (“the Applicant”) is a 36 year old citizen of New Zealand who sought review of a decision by a delegate of the Minister (“the Respondent”) not to revoke the cancellation of his visa. If not for very specific and compelling circumstances surrounding three children who are Australian citizens, the Tribunal would have affirmed the reviewable decision, i.e. the Applicant’s visa would remain cancelled and he would be returned to New Zealand. This is the second time the Applicant’s visa has been cancelled on character grounds. The first cancellation was revoked and the Applicant subsequently re-offended. If the Applicant were to again re-offend, the likelihood of a third visa cancellation being revoked seems very remote and this was communicated to the Applicant at the hearing.
The detailed reasons for Tribunal’s decision follow.
THE ISSUE BEFORE THE TRIBUNAL
In 20 October 2017, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class TY subclass 444 Special Category (Temporary) visa (“the visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.
The Applicant subsequently made representations and provided supporting material as to why that cancellation should be revoked.
On 17 July 2018, the cancellation was revoked and the notice of that revocation contained the following warning:
“Please note: this decision does not mean that you cannot be considered again on character grounds. If you come to attention again because of further criminal offending by you, your disregard of this warning will weigh heavily against you”.[1][Emphasis in original]
[1] Exhibit G1, G-Documents, G6, page 15.
The Applicant signed an acknowledgement of having received the notice on 24 July 2018. He gave evidence at the hearing of this matter that he understood the warning.
On 16 March 2019, the Applicant re-offended, and he offended again in June and September 2019, at which time his parole was cancelled and he was taken into custody. On 12 November 2019, the Applicant was convicted and sentenced to a total effective sentence of eight months imprisonment in relation to that further offending.
This led to the Respondent, again, mandatorily cancelling the Applicant’s visa under
[2] Ibid, G13, pages 48 to 49.
s 501(3A) of the Act on 20 November 2019. The Applicant subsequently made representations as to why the cancellation should be revoked. On 29 April 2020 the Respondent decided not to revoke the cancellation (“Decision under Review”).[2]
The Applicant lodged an application with this Tribunal on 15 May 2020 seeking a review of the Decision under Review.[3] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[3] Ibid, G1.
The hearing of this application proceeded on 15 and 16 July 2020. The Applicant did not have legal representation. He gave evidence by video conference. His mother, step-mother and two other witnesses gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[5]
[4] [2018] FCAFC 151.
[5] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[6]
[6] Ibid.
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In 2019, the Applicant was sentenced to concurrent periods of imprisonment of eight months, six months, two months, 50 days, and one month. Sub-section 501(7A) of the Act provides that, for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. Accordingly, the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[7]
[7] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[8] and “Other considerations”.[9] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[8] Ibid, paragraph 13.
[9] Ibid, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[10]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[11]
[10] [2018] FCA 594.
[11] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision‑maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
New Zealand
The Applicant is 36 years of age. He spent his entire childhood and his early adulthood in New Zealand before moving to Australia in September 2008 at the age of 24. Since moving to Australia, he has returned to New Zealand for short periods on numerous occasions.
In New Zealand the Applicant lived with his mother and two siblings until he was around 12. While not altogether clear it seems he then lived with his father on and off for the next few years, and with friends and cousins between 2003 and 2008. In 2003, the Applicant’s mother moved to Australia. That same year, the Applicant was caught drink-driving, with low range blood alcohol. He was 19 at the time. The Applicant was convicted of disorderly behaviour in 2003 and 2007 and sentenced to small fines on each occasion. In 2003 he was convicted of theft, and sentenced to supervision for one year. He said he was in a car with a group of people, there was a stolen chainsaw in the vehicle and they were all charged.[12] In 2005, while drink-driving, he crashed his car into a tree and ended up in hospital.[13] This caused him to stop drinking.[14]
Australia – alcohol-related offending
[12]    Transcript, page 67, lines 25 to 30.
[13]    Ibid, lines 1 to 6.
[14]    Transcript, page 65, lines 26 to 27.
In 2010, the Applicant was in Australia working as a bricklayer, and in an effort to fit in with his workmates who drank excessively, he engaged in the same behaviour.[15] In the early hours of 9 October 2010 police intercepted him because of the way he was driving. When asked to provide a breath specimen, he stopped blowing before he was told to on four separate occasions. He was then directed to give another breath specimen which he did correctly. His blood alcohol concentration was 0.193g-210L, which is nearly four times the legal limit. Police subsequently searched the Applicant and found a small amount of cannabis in his wallet.
[15] Transcript, page 64, lines 20 to 24.
In the early hours of 13 October 2010, again while intoxicated, the Applicant and an associate broke into a commercial premises. The Applicant’s role was to stay outside and act as a lookout while his friend broke in for the purpose of stealing. His associates stole some knives. The Applicant claimed that he did not realise what his associate planned to do until they were at the premises and that he was so drunk that he fell asleep on the back step. However, I am satisfied that the Applicant knew that he was assisting in a burglary.
Around two hours later, police responded to reports of a disturbance where the Applicant lived. Several council bins had been knocked over and the Applicant was clearly intoxicated. He was agitated and abusive towards police. He was asked to go back inside his unit as he was committing a public nuisance. As police were leaving the Applicant came out of his unit and yelled obscenities in the direction of his neighbours. Police searched the Applicant and found a folded pocket knife in his pants pocket. The Applicant accused police of placing it there. The Applicant told the Tribunal that he did not knock over the council bins, and that he went outside because he heard the bins being knocked over and suspected it was some neighbours who lived nearby. He said the knife belonged to him but he could not remember having put it in his pocket.
For the offences on 9 October 2010, the Applicant was sentenced to a good behaviour bond. For possessing dangerous drugs, he was fined. For “fail to provide breath specimen” and drink-driving his licence was disqualified and he was fined. For the offences on 13 October 2010, the Applicant was convicted of “commit public nuisance”, “possession of a knife in a public place or school”, “possess utensils or pipes etc that had been used” and “possess property suspected of having been used in connection with the commission of a drug offence”, and “enter premises and commit indictable offence by break”. He was sentenced to 12 months of probation.
Also, in 2010 the Applicant met his ex-partner (now ex-partner). It was around this time that the Applicant first tried “ice”. According to him, he did not like it and he did not like the people associated with it, so he avoided “ice” and anything associated with it. In late 2011 the Applicant and his ex-partner had a baby, Child A. In 2014, they had a second baby, Child B. The Applicant was not offending during this period. According to the Applicant, in 2015 his ex-partner became addicted to methamphetamine. She stopped for a long period at some point and subsequently relapsed.[16]
Drug-related offending
[16] Transcript, page 79, lines 4 to 6.
On New Year’s Day 2016 the Applicant used “ice” again. He said:
“… I had the cleaning contract for the Gladstone Yacht Club and in the process of performing my duties I found a bag of crystallised substance and unfortunately curiosity got the better of me and it wasn’t long before I was in active addiction. In hindsight, I find it quite profound how such an insignificant event, (being me finding the bag), can have far-reaching consequences…For four years from 2011 to 2015 I had successfully avoided ICE as my fiancée had given birth to two of my children …”[17]
[17] Exhibit G1, G-Documents, G22, page 104.
According to him, at first he used it occasionally with a friend on fishing trips. In the hearing, he said sometimes he would buy it to share with his friend and other times his friend would buy it to share with him. He likened the arrangement to buying rounds of drinks. By around April 2016, he was using it on weekends. He was also supplying it to others. He told the Tribunal that he would drive somebody to buy drugs and in return they would give him $50 or share their drugs with him.
The Applicant’s best friend, who he referred to as his “brother” passed away (in New Zealand), and on 1 July 2016 the Applicant went to New Zealand for the funeral. He returned on 10 August 2016. He said after that he was using “ice” daily.[18]
[18] Transcript, page 69, lines 6 to 9.
On 21 August 2016, the Applicant was intercepted by police while driving with a passenger. They found several clip seal bags, an unopened blister pack of anti-anxiety medication, and a glass pipe.[19]
[19] Exhibit R2, Respondent’s Tender Bundle, page 99.

On 2 November 2016 the Applicant was again intercepted by the police, after trying to evade them. The police found $670 cash in his wallet, a glass pipe, a mobile phone, and in a false dashboard they found three clip seal bags containing methamphetamine, two clip seal bags containing cannabis, two unused clip seal bags, and two electronic digital scales. The total amount of methamphetamine in the Applicant’s possession was 2.285 grams (pure). The police were unable to conduct an analysis of the mobile phone.[20] The Applicant told the Tribunal that the methamphetamine that was found by the police did not belong to him. He said “Some people were reluctant to hand the money over so I was given the stuff to take back and I didn’t make it back.”[21] He therefore incurred a drug debt in the amount of $1,200.
[20] Ibid, pages 99 to 100.
[21] Transcript, page 43, lines 5 to 7.
On 1 December 2016, police executed a search warrant at the Applicant’s home. The Applicant was there with two other people. Police located a used water pipe in the kitchen and stolen registration plates in the garage. In the Applicant’s bedroom, police located two clip seal bags of Demazin tablets and Codral tablets which the Applicant told police were to produce “meth”, three unused clip seal bags, tick sheets, digital and manual scales, a mobile phone, a gold clock ornament, and a clip seal bag containing 1.5 grams of methamphetamine. The tick sheets appeared to contain references to quantities of dangerous drugs.[22] The police alleged that the tick sheets appeared to indicate that just over $40,000 was owed to the Applicant by 10 customers.
[22] Exhibit R2, Respondent’s Tender Bundle, page 101.
Records from the Queensland police[23] indicate that after the Applicant was arrested he participated in a recorded interview. In that interview he said that he “didn’t make much” from selling methamphetamine. He told police that he had continued this behaviour since an unknown date when his house was broken into. He said he did not have a legal form of income, and the proceeds of selling drugs were used to purchase more drugs, fuel for transportation, food and other life necessities. This is somewhat consistent with representations that he subsequently made to the Respondent after the Respondent cancelled his visa. Those representations were:
“I had lost my job due to shortage of work in gladstone (sic) and my brother had just passed away and I returned to New Zealand to bury him and while in NZ my house was robbed and my ex-partner was struggling to financially support us all and I thought it was a good idea at the time as I was grieving and mentally unstable. I was trying to escape reality and was trying to stop when my house was raided and people living there had left stuff laying around and I had taken some of their charges too.”[24]
[23] Ibid, pages 59 and 60.
[24] Exhibit R3, Supplementary G-Documents, page 202.
According to the prosecution’s Schedule of Facts, the Applicant told the police that he initially supplied to his friends but the business expanded. He would charge $50 more than what he had paid for the drugs and that he would sometimes take collateral for payment including cold and flu tablets, watches and cameras. He said he intended to pay a debt he owed to his mother and that he did not “get much between smokes”.[25]
[25] Exhibit R2, Respondent’s Tender Bundle, page 102 to 103.
Also, according to the Schedule of Facts, the police analysed the Applicant’s mobile phone and found 104 drug-related messages over the period between 24 October and 2 November 2016. A total of 13 customers were identified. The messages included references to “HB” and to “singles” which the prosecution later alleged was a reference to a point (0.1 gram) of methamphetamine. The Schedule of Facts asserts that “In respect of debts, the [Applicant] was quick to tell customers that they could not collect drugs until they had paid upfront”.[26] I note that this assertion is confusing as it suggests that there were debts but that the Applicant required customers to pay upfront.
[26] Ibid, page 102.
The Applicant was remanded in custody on that day. The Applicant’s mother took Child A to New Zealand and he stayed there in the care of the Applicant’s brother for around one year, returning in January 2018 just before the Applicant was released from prison.[27] Meanwhile, the Applicant’s ex-partner and Child B moved in with his mother.[28] In relation to the reason for placing Child A with the Applicant’s brother in New Zealand, the Applicant said his ex-partner’s “anxiety and depression was playing up severely after [he] was incarcerated”.[29] He told the Tribunal:
“Because I was primary - I used to do everything…Basically, she couldn’t cope. She was pregnant and not doing the right thing and we had [two children] and they were fighting. She could not cope so it was - that was - our only form of support was to send [him] to my brother so that she could manage with just one child and herself, which she still couldn’t even do that. She ended up moving in with mum for support...”[30]
[27]    Transcript, page11.
[28]    Ibid.
[29]    Exhibit R3, Supplementary G documents, page 201.
[30]    Transcript, page 18, line 42 to page 19, line 3.
On 5 September 2017, the Applicant was convicted of trafficking in dangerous drugs, and sentenced to three years and six months imprisonment, to be suspended for five years after serving 14 months. The time he had already served on remand counted towards that 14 months. The Applicant was also sentenced to three years imprisonment (concurrent) for possessing dangerous drugs on 2 November 2016, with a parole release date of 31 January 2018. Effectively, the Applicant was to be released under both sentences on 31 January 2018 at which point he would be subject to a suspended sentence and parole. The Applicant was convicted and not further punished for the following offences that he had committed on 21 August, 2 November, and 1 December 2016:
·     possess dangerous drugs specified in schedule one or two;
·     possessing anything for use in the commission of crime;
·     permitting use of place;
·     receiving tainted property (x2);
·     possess property suspected of having been used in connection with the commission of a drug offence (x3);
·     possess utensils or pipes etc for use (x2);
·     unlawful possession of restricted drugs;
·     possession of property suspected of being the proceeds of an offence under Drugs Misuse Act; and
·     possess utensils or pipes etc that had been used.
In sentencing the Applicant the learned Judge accepted that the tick sheets showed 10 customers and total debts owing in the order of $40,000. His Honour’s sentencing remarks included the following:
“The total debts owing are said to be in the order of $40,000. 10 customers identified. The quantities of drugs involved in the order of half an ounce, half a ball and a quarter.
Following your arrest on that occasion, you engaged in a record of interview with the police were you made substantial admissions. The period alleged against you in which you were trafficking drugs comes from the admissions that you made. It would seem that about 12 months before you started selling drugs and that occasional sales grew and eventually you had a business, so the precise period that you were trafficking cannot be stated, nor can your profits. You had a significant turnover. There were some, it is said $30,000, at least, in debts. Your phone was seized on that last occasion, text messages. There were 104 drug-related messages found in a nine day period with 13 customers identified. It is said that you were engaged in this trade, among other reasons, to repay your mother a debt and your council tells me the debt was $1000. Obviously, you also engaged in the trade to feed your own habit. The schedule of facts sets out the detail of your trafficking to the extent you revealed it. You would purchase significant quantities of methyl amphetamine and on- supply that to others. The details of your profits are there. You claim that you would only ever charge about $50 more than you had paid for the drugs.
Turning to your personal antecedents, you are a mature man. You are aged 33 now, 31 and 32 at the time of the trafficking, and 32 in relation to all other offences. You have a criminal history which is relevant. You came before the Gladstone court in December 2010 for a possession of drugs, a small amount of cannabis, and again before the court in January 2011 for a variety of offences including drug offences. You were placed on probation then and the probation officer was happy with your performance. Your council tells me that you left school at around grade 9 or 10. You have been in good employment over the years but you got yourself involved in drugs. You have had problems with alcohol and drugs basically all your adult life. I note you have done well in prison whilst you have been on remand. You have been on remand for about nine months. You are a man now with family responsibilities. You are supposed to be supporting three children, not sitting around in jail. All this is said to be due to your serious drug habit.
I note the letter from [the Applicant’s mother] that says you have been a good worker in the past and you have work available with her upon your release. The fact is, though, you have engaged in a serious crime. Drugs are an evil we are trying to control. We can only do it here by imposing sentences that deter you and deter others. Even if you have reasonable rehabilitation prospects, and that will depend very much on your own attitude and how seriously you take your family responsibilities, I need to impose a sentence that reflects our condemnation of your conduct. As the Prosecutor has submitted, the worrying feature is that the police apprehended you on three separate occasions and you did not learn.”[31]
[31] Exhibit G1, G-Documents, G16, page 69.
In the hearing, the Applicant admitted that he had created the tick sheets however he said he did so in an effort to work out how much money he had paid off his drug debt because his supplier kept telling him he owed money. He said the tick sheets did not represent debts owed to him. It appears that the sentencing court accepted the prosecution’s assertion that a large amount of money was owed, but it is not clear on what basis. As I have noted above, the information in the Schedule of Facts about the messages on the Applicant’s mobile phone do not make it clear whether the Applicant allowed debts or required upfront payment. While the Tribunal should exercise caution in making a finding that is not consistent with the finding of a sentencing court, given the ambiguity in the facts presented to the court, and the fact that the Applicant’s explanation is not inherently implausible, I am not satisfied that the Applicant was conducting a trafficking business of such a scale that he was owed in excess of $30,000 or $40,000. I accept that the tick sheets recorded the deals that the Applicant had facilitated, and that the figures of $30,000 or around $40,000 put forward by the prosecution (the different figures also causing confusion) more likely reflected the total turnover of the trafficking business.
I note that the evidence obtained by the police indicating that the Applicant had been supplying drugs related to very short periods, being the period covered by the text messages and the dates on which the Applicant was intercepted in possession of clip seal bags and/or drugs. The time period of 13 months was largely based on admissions made by the Applicant about his activities. The prosecution conceded in its Schedule of Facts that “The admissions form a substantial part of the trafficking charge”.[32] The commencement date of December 2015 is not consistent with the time when the Applicant says he started using methamphetamine, being New Year’s Day 2016, although nothing turns on this.
[32] Exhibit R2, Respondent’s Tender Bundle, page 102.
Overall, I am satisfied that in January 2016, the Applicant started using methamphetamine occasionally and an addiction developed such that his use continued and increased, then after the death of his best friend he was using it even more frequently. I accept that he initially shared drugs with his friends and that they shared their drugs with him, that he started facilitating drug deals in around April 2016, that he incurred a drug debt after police seized some drugs from his car, and that his drug use and trafficking increased in the months before he was arrested on 1 December 2016.
I find that the Applicant’s trafficking activities largely paid for his drug habit, living expenses and a drug debt that he incurred.
First visa cancellation
In 20 October 2017, the Applicant’s visa was cancelled. He subsequently made representations to the Respondent as to why the cancellation should be revoked. In those representations he said:
“I have learnt from my mistakes and have counselling organised upon release willing. I have my mother living over here and has a house waiting for me and work upon my release.”
and
“Highly unlikely I will re-offend as I realise now what I have and am missing out on and I just want to look after my family and support them. My mother is going to help me with casual work until I find a stable job so I don’t have to find money elsewhere.
Yes I have completed several certificates to better my chances of getting employment when released. copies have been included I have applied and waiting for response to attend the HOW (drug program). I have work and counselling organised for when I am released.”
and
“I know I stuffed up but I dont want my bad decisions to affect my children. If given the chance I will do everything right and take nothing for granted as I have previously done in the past. I will apply to all requirements asked of me. We’ll go to work, look after my family and work hard to maintain a good relationship with them. Will attend counselling as my ex-partner has asked and organised for me to attend upon my release. Thank you for acknowleding my request.[33]
[Errors in original]
[33] Exhibit R3, Supplementary G-Documents, page 205.
The Applicant did not use drugs in gaol. He told the Tribunal he saw gaol as punishment and also rehabilitation.[34] On 31 January 2018, having served the custodial part of his sentences, the Applicant travelled to New Zealand. He elected to do this, rather than go to Immigration Detention while he awaited the outcome of his revocation request, so he could earn money to help support his family. While in New Zealand, he stayed with his father and step-mother and helped his father in his house painting business. He sent money to his family in Australia. According to the Applicant he did not use drugs or alcohol while he was in New Zealand,[35] and he spoke with his children on a daily basis. His evidence was corroborated by his step-mother and I accept it. The Applicant’s ex-partner and children also visited him in New Zealand.
[34] Transcript, page 69, lines 32 to 33.
[35] Ibid, lines 46 to 47.
I am satisfied that the Applicant did not use drugs or offend while in custody or in New Zealand.
On 17 July 2018, the decision to cancel the Applicant’s visa was revoked. According to the Applicant, his ex-partner found an email saying that he had his visa back. On 27 August 2018 the Applicant returned to Australia.
The Applicant told the Tribunal that he continued to abstain from drugs upon his return to Australia. The Applicant’s ex-partner’s depression worsened to the point where she would sleep all day. The Applicant’s family and his mother all moved into a home owned by her so she could help with the children.
Re-offending
The Applicant relapsed “around April”.[36] In a letter to the Tribunal, he said:
“I can’t pinpoint an exact event that triggered me to relapse however I bumped into an old associate who was a backyard mechanic who offered to fix the family car for half the price I was quoted from a registered mechanic. It was at the mechanics house that I unfortunately relapsed.”[37]
[36] Exhibit G1, G-Documents, G22, page 104.
[37] Ibid.
By the time of the hearing, the Applicant was no longer in a relationship with his (now) ex-partner and he was more forthcoming about the reasons for his relapse. He said he relapsed in around May 2016 after finding out that his ex-partner had been unfaithful.[38] He said:
“I just had a lot of stress at home. I got bad news that I couldn’t deal with from my ex-partner that I planned to build my life with, eight and a half years, my first - first real girlfriend, and I just relapsed and didn’t handle things appropriately that needed to be addressed.”[39]
[38] Transcript, page 70, lines 11 to 23.
[39] Transcript, page 64, lines 26 to 30.
When asked about any pressures that contributed to his relapse, he said:
“It’s just basically just the pressures of - the kids - the kids are the easy part…I was sort of struggling to keep my house together with my - I was cooking, cleaning, dropping the kids to school as well as finding work where I could, and just a relationship breakdown. I asked if we needed counselling, and one minute she’s all good for it and then the next minute she didn’t want to partake. Yes. I then received - several people had told me that she’d been unfaithful when I was in gaol for the trafficking 2016. That’s when I sort of - I spiralled - yes, I relapsed. I just couldn’t take it, I was a wreck, very distraught. I thought we were going to get married and we had a house and kids and everything, and even after the fact I still tried to keep things together for me and the kids and her and seek counselling, but - I was all for getting ourselves sorted, and she wasn’t ready to give up - to seek counselling, but - yes….[40]
[40] Transcript, page 67, line 38 to page 68, line 4.
His mother corroborated his evidence concerning his ex-partner. Her opinion was that “It was a very heavy burden carrying [his ex-partner].[41]
[41] Transcript, page 94, line 7.
On 16 March 2019, police attempted to intercept a vehicle that was registered to the Applicant’s ex-partner because checks revealed that she was unlicensed. The vehicle, that police observed being driven by a male, evaded police. Some days later police spoke with the Applicant and his ex-partner. The Applicant said that he normally did drive the vehicle however he was not driving it on that occasion and he provided the name of another male who had driven the vehicle before. However, the police did not consider that person matched the description of the male seen driving the vehicle. While the Applicant ultimately pleaded guilty to this offence, he told the Tribunal that he was not driving the vehicle. He said the vehicle was at a mechanic’s house for two weeks. He said he told police that the car was being worked on and he was not driving it.[42] The Applicant was convicted and sentenced to a short term of imprisonment (50 days) for this offence. As this conviction contributed to the total effective sentence that enlivened the exercise of the Respondent’s power to cancel the Applicant’s visa and accordingly, to decide not to revoke that decision, the Tribunal is not permitted to make a finding that is inconsistent with that conviction.[43] I find, therefore, that the Applicant was the driver of the vehicle. I am unable to draw any conclusion about why the Applicant evaded police or if it was drug-related.
[42] Transcripts, page 57, lines 5 to 10.
[43] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
On 5 June 2019 the police intercepted a car with four occupants including the Applicant. Police found scales and two straws in the driver’s side door well where the Applicant was sitting. The Applicant told the Tribunal that straws are used to divide the drugs. The following day the parole service was notified that the Applicant had been charged with “Possess property suspected of having been acquired for the purpose of committing a drug offence”[44] and made an unsuccessful attempt to contact the Applicant. On 12 June 2019 the Applicant told the parole service that the drug utensils were not his and that he had not used drugs for years. He was directed to undergo a drug test which he did the following day. It was positive for methamphetamine, amphetamine and ephedrine.[45]
[44] Of which he was ultimately convicted.
[45] Exhibit A20, Information Privacy released documents, pages 24 to 26.

Throughout the rest of June and all of July 2019 the parole service was unable to make contact with the Applicant despite numerous attempts. The Applicant told the Tribunal it was because he had moved residence. The parole records indicate that the parole service only had a landline number for the Applicant.
On 4 August 2019 the Applicant was caught drug-driving. He had methamphetamine in his saliva. He told the Tribunal that he had “used” the night before and assumed he was alright to drive by the next afternoon.[46] He said at that time he was using every couple of days or once a week.[47] The parole service was notified and made further attempts to contact the Applicant. On 7 August 2019 the Applicant contacted parole. He admitted to using methamphetamine that said he only did it on weekends with one of his mates or by himself. He was advised to be more honest about his drug use given his previous denial. On 13 August 2019 he was referred to a rehabilitation service. By early September the Applicant appeared to be engaging better and communicating more openly with his parole officer. However, on 25 September 2019 the Applicant was again charged with drug offences.
[46] Transcript, page 64, lines 12 to 15.
[47] Transcript, page 65, lines 46 to 47.
The Applicant told the Tribunal that he had broken up with his ex-partner and was staying temporarily with a friend. The police found small quantities of drugs (methamphetamine and cannabis) and drug paraphernalia in the property and in the Applicant’s vehicle. He downplayed his involvement in the offending, saying he was not aware of the presence of the drugs that were found in the residence although he had given his flatmate money to buy drugs, and that the drugs found in his car were fake. He said he pleaded guilty to the offences because his lawyer told him he could be in gaol for another six months if he fought the charges.[48] He ultimately pleaded guilty to:
·     possessing dangerous drugs (x4); and
·     possess property suspected of having been acquired for the purpose of committing a drug offence (x2).
[48]    Transcript, throughout pages 53 to 55.
As stated above, the Tribunal may not make a finding inconsistent with these convictions. In any event, what matters for present purposes is that the Applicant was using drugs. There is no suggestion that the drugs were for anything other than personal use and I am not satisfied that they were.
On 12 November 2019, the Applicant was convicted of the offences committed on 16 March, 5 June, 4 August and 25 September 2019. He was sentenced to varying periods of imprisonment for the different offences, with a total effective sentence of eight months imprisonment.
In February this year, in correspondence to the Tribunal, the Applicant described his ex‑partner as his fiancée. However, at the hearing he said they were no longer together and in fact she is in a new relationship. He said the primary reason for their relationship ending was that he wanted her to engage in counselling and rehabilitation to stop her drug use and she did not want to do that. He said:
“We had organised counselling and that, and she’s - I joined the church and started going to courses and stuff, and I don’t think that she’s - she has unwillingness to change at the moment. She does - she suffers from depression and anxiety and she has a bad - she uses, so we can’t be together. I can’t - I can’t, yes, have a relationship with a user, yes.”[49]
[49] Transcript, page 16, lines 30 to 35.
The Applicant has recently been transferred to Immigration Detention.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Clearly the most serious of the Applicant’s offences is the drug trafficking offence. The seriousness of that offending is evident in the sentence imposed, being a head sentence of three and a half years imprisonment with a non-parole period of 14 months. The fact that the Applicant continued to engage in that activity despite police intervention adds a degree if seriousness.
The Applicant also received sentences of imprisonment for the offending in 2019. For three of the four offences of possessing dangerous drugs committed on 25 September 2019, he was sentenced to eight months, six months, and two months imprisonment respectively. For all of the offences relating to property associated with a drug offence, he was sentenced to one month imprisonment. For the evasion offence, he was sentenced to 50 days imprisonment. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court. While there was no suggestion that the drug offences in 2019 related to anything other than personal use, the sentencing Magistrate considered them serious enough to warrant sentences of imprisonment. The Magistrate referred to the Applicant’s previous conviction for trafficking, and the fact that the 2019 offences were committed while the Applicant was on a suspended sentence, and there is no doubt that he took those two things into account when passing sentence. Those sentences of imprisonment reflect the seriousness of the offending and the circumstances of the offending.
With respect to offending that arises primarily from drug use, where multiple charges tend to arise from one offending episode (e.g. possession of drugs and possession of drug-related paraphernalia), it can be more illuminating to consider offending episodes rather than offences. In New Zealand, the Applicant committed alcohol-related offences including drink-driving and disorderly behaviour. After crashing into a tree, he stopped drinking. Five years later the Applicant started drinking again, and he was using cannabis. He had three offending episodes relating to alcohol and drugs in October 2010. He then cleaned himself up and did not re-offend until 2016. During 2016, there were three offending episodes, although the Applicant admitted that he was regularly sharing and then supplying drugs throughout that year. In 2019, after the Applicant relapsed, there were four offending episodes, although they were less serious than the 2016 offending. There is not a trend of increasing seriousness in the Applicant’s offending. Rather, there is fluctuation that reflects the fact that he succumbs to alcohol or drug misuse, then abstains for a period, then succumbs again.
The Applicant’s offending largely impacted on him as most of his offending related to his personal drug use. The cumulative effect of his trafficking activities is that an illicit drug of dependence was circulated in the community, albeit at a low level, for around eight months.[50] In addition to that, the Applicant was associated with some property offences and the impact of those is that individuals or businesses were deprived of their property and probably suffered financial loss. Very fortunately there does not appear to have been any injury caused by the Applicant’s drunk driving or drug-driving.
[50] As he started facilitating drug deals around April 2016.
The Applicant’s visa was previously cancelled, and when that decision was revoked, the Applicant was warned that:
“Please note, this decision does not mean that your case cannot be considered again on character grounds. If you come to attention again because of further criminal offending by you, your disregard of this warning will weigh heavily against you.” [Emphasis in original]
It does indeed weigh heavily against the Applicant that he re-offended after having been warned. Not only that, he re-offended after assuring the Respondent that he would not re‑offend.
The Applicant’s offending both in New Zealand and Australia is entirely drug or alcohol-related. He has not committed any crimes of violence or any crimes against vulnerable members of the community or officials in the performance of their duty. He has not broken into people’s homes or vehicles. His trafficking was “street level” and the evidence indicates that he sold to people who approached him rather than soliciting business, which counts in his favour. Nor is the Applicant’s offending persistent.
It is not the case that the Applicant was impervious to the intervention of the justice system. Rather, the Applicant stopped offending in 2010 after being put on probation, he stopped offending in 2017 after being imprisoned and remained clean for some 15 months after being released, and he has stopped offending in 2019 after being imprisoned (although he remains in a custodial setting). The Applicant’s offending it is not indicative of a person who has no respect for the laws that govern the community in which he lives. It is indicative of a person who used to be irresponsible in relation to alcohol but stopped in 2010, and who subsequently became addicted to methamphetamine and relapsed once, owing to significant personal stressors.
There is no evidence that the Applicant has committed any offences while in Immigration Detention, and I am satisfied that he has not. Further, on the evidence before me, I accept that he has been of good behaviour during his entire period in custody.
The Applicant has not provided any false or misleading information to the Department.
I do not consider factors (a) to (c), (g) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances, so they do not require consideration.
Taking all of the relevant circumstances into account, the Applicant’s offending is serious, however on the spectrum of seriousness of offending his offending is towards the middle.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
In relation to the Applicant’s offending thus far, there are two categories that have an obvious potential to harm individuals or the Australian community. The first is supplying drugs, on a relatively low-level basis, to members of the community who approach him for drugs. Methamphetamine is a highly addictive and harmful drug as the Applicant well knows from his own experience. Circulating a harmful drug of dependence in the Australian community potentially brings about misery to those who become addicted, their loved ones, and the victims of drug-related crime. Given the small scale of the Applicant’s trafficking, the harm is not so serious that any risk is unacceptable.
The second category of potentially harmful offending is driving under the influence of alcohol or drugs, which obviously increases the risk that a driver will cause serious injury or death to other road users.
I am cognisant of the Applicant’s involvement in 2003 in the possession of a stolen power tool, his assistance in 2010 in a break and enter at a commercial property, and his possession of tainted property in 2016. This type of behaviour supports burglary and theft from individuals and businesses. To my mind burglary is worse when it involves a private home or (to a lesser extent) a private vehicle because of the sense of violation that is naturally felt by the victim. The Applicant has not been involved in that kind of burglary. Nor are property offences a common theme through the Applicant’s offending, and it does not appear that he commits property offences to support his drug use. Still, should he continue his occasional involvement in property crime, the likely effects are loss of property to individuals and/or businesses.
Repeated offending potentially brings about physical, psychological and financial harm to members of the Australian community.
The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
The risk that the Applicant will re-offend appears to be entirely dependent on the risk that he will return to drug use or alcohol abuse. The Applicant did not have legal representation in these proceedings and there is no independent expert risk assessment before the Tribunal. I must therefore make this assessment based on the evidence that is before me.
During the hearing, on a few occasions when the Applicant was giving evidence about other topics, he mentioned that he did not drink alcohol anymore. He has not been convicted of any alcohol-related offences since 2010. I am satisfied that he had not consumed alcohol since 2010 and that there is a low risk that he would in future. To my mind the significant risk factor for the Applicant is methamphetamine.
After the first time the Applicant’s visa was cancelled, he made representations to the Respondent about why the cancellation should be revoked. In those representations he said:
“I know I stuffed up but I don’t (sic) want my bad decisions to affect my children. If given the chance I will do everything right and take nothing for granted as I have previously done in the past. I will apply to all requirements asked of me. We’ll go to work, look after my family and work hard to maintain a good relationship with them. Will attend counselling as my ex-partner has asked and organised for me to attend upon my release.”
In an undated letter to the Respondent, the Applicant wrote:
“I felt I was set up to fail by parole and I’ve been greatly let down by their inaction on my requests.
Upon my return to prison, I’ve taken steps to organise my own third party support in the community with the help of my ex-partner. I have arranged for drug and alcohol counselling and relationship counselling. I have attempted a fathering course while in prison but the course was cancelled by prison staff due to issues out of my control. I’m also listed to attend a medium intensity drug course early in the new year.
I’m taking control of my life and setting in action the help I need.
I’m fully aware that my actions are not up to the Australian standard, and I would like to redeem myself to the Australian public. With the right support networks in place in the community, I feel I can be a very productive member of the public.”[51]
[51] Exhibit G1, G-Documents, G22, pages 97 and 98.
In the hearing he said, he will never use methamphetamine again.[52] He said he will not re‑offend as he is the only “rock” his children have got so he cannot afford to re-offend.[53] He acknowledged that he cannot afford to associate with “anyone of the sort” (which I take to mean drug-users) and that he now has a fellowship of “happy, positive people that are moving in the right direction” who are “non-users”, and friends at church.[54] He does not want to be in another relationship: he wants to focus on working and raising his children.[55]
[52]    Transcript, page 71, lines 20 to 21.
[53]    Transcript, page 72, lines 27 to 29.
[54]    Ibid, lines 27 to 33.
[55]    Transcript, page 68, lines 17 to 23.
In a letter of support written in May 2020 the Applicant’s mother said:
“Last time [the Applicant] came home he was still left with a bad attitude to life, angry and resentful full of unforgiveness and ingratitude, not relising what he had and what was of true value. I was bitterly disappointed as a mother. He needed counselling and education in life skills, how to deal with life when bad things happen sadly his time inside was wasted. This time is different, his whole attitude has changed and he is grateful he rings to thank me for minding the boys and keeping them safe. He has realised the value of the little things in life. The starting point for his change may have started when the judge told him “he has lost his ex-partner his three little boys and everything else. You will serve your time and you will be deported and you have only yourself to blame”. This time round he has asked for the help he needed and he has been given it. For that I am very grateful. Ideally I would like to come home to the boys but if he goes to NZ then we will move back there the boys need their father. They need their mother too but even if she gets off the drugs she will never cope on her own as she suffers from depression… If [the Applicant] comes home at least they’ll have the love and attention they need and they’ll have regular access to their mother.”[56] [Errors in original]
[56] Exhibit A9, Letter of support from the Applicant’s mother dated 22 May 2020.

She told the Tribunal:
“I only know that in the Capricornia [Correctional Centre] they have given [the Applicant] the gift of life. They have opened his life, his eyes, he can plainly see. They have given him the skills to cope, they have shown him what has led him down the wrong path. They have done so much for him in there…”[57]
[57] Transcript, page 94, lines 43 to 45.
While it is frequently the case that persons who are facing deportation on character grounds claim to have experienced a recent change in attitude, and they provide corroborating statements from friends or family, in this case I am inclined to accept the evidence of the Applicant and his mother. I found the Applicant’s mother to be natural and candid in her evidence. I consider her to be a reliable witness and I place significant weight on her evidence.
The Applicant did not commit any offences during 2011 to 2015. He attributed this to the birth of his first two children.
The Applicant commenced methamphetamine use in early 2016 after finding some methamphetamine in the premises where he was working. He attributed his initial use to curiosity, and relationship and financial stress. He attributed the escalation in his use to his grief over his best friend’s death and his home being burgled while he was in New Zealand for his friend’s funeral.
It took a period of incarceration to stop the Applicant’s methamphetamine use. He abstained from drugs and alcohol for 14 months in custody. He continued to abstain from drugs and alcohol for a further seven months in New Zealand while he lived with his father and step-mother and helped his father with his house painting business. Upon his return to Australia he continued to abstain from drugs and alcohol for a further eight months. During this eight months he was living with his ex-partner who was addicted to methamphetamine and using it frequently, yet the Applicant abstained.
The Applicant relapsed around April 2019 when an associate offered him methamphetamine in the context of a strained home life and his discovery that his ex-partner had been unfaithful to him.
It is concerning that when he relapsed, rather than asking the parole service for help, he denied his drug use. It is also concerning that after returning a positive drug test in June 2019, he dropped out of contact with the parole service until August 2019. He did, however, eventually admit he had a problem and he sought help. Of further concern is that he relied on the parole service to arrange intervention for him and when that was not forthcoming, he did not proactively seek help.
If past behaviour is the best predictor of future behaviour, I would conclude that there is a high likelihood that the Applicant will, at some point in the future, have another relapse and consequently engage in drug-related offending that could include encouraging or facilitating others to consume drugs or driving while affected by drug use. The Applicant himself said in December 2019:
“If I don’t have the proper community support in place and counselling organised then relapsing would be high. Also returning to old friends and the same town could influence old habits.”[58]
[58] Exhibit G1, G-Documents, G21, page 91.
However, there have been some recent development in relation to the Applicant’s circumstances and behaviour that I consider significant.
First, the Applicant is no longer in a relationship with his ex-partner. If the Applicant is returned to the community, he will not be exposed to her drug use or required to cope with her problematic behaviour. Further, there is much more at stake for the Applicant this time around. The first time the Applicant’s visa was cancelled, his ex-partner was prepared to follow him, with the children, to New Zealand. In his request for that cancellation to be revoked he pointed to very little in the way of detriment to him or his family if he were to be deported. That is no longer the case. His ex-partner is in a new relationship.[59] The children are currently in his mother’s care but his ex-partner could take them into her care at any time and has expressed an intention to do that. The Applicant is now faced with the prospect that if he is not at liberty in Australia, his children could end up in the care of a person who is not fit to look after them (discussed in more detail under Primary Consideration B) and he may never be able to help them. I have no doubt that the Applicant loves his children and is very concerned for their wellbeing. The consequences for him of further incarceration or deportation are far worse for him now than they were before his relapse in 2019. The Applicant realises that if his visa is returned to him on this occasion and he commits further offences his visa could again be cancelled and it is most unlikely that he would get it back.
[59] Transcript, page 22, lines 44 to 46.
Second, if the Applicant is returned to the wider community, he will not return to Gladstone but will live around thirty minutes away with his mother and his children. This will place him close to his prospective employer and away from old drug-using associates.[60]
[60] Transcript, page 81, lines 33 to 48.
Third, he has undertaken a Low Intensity Substance Intervention program while incarcerated and, with his mother’s help, he has made contact with drug rehabilitation courses in the community. This is a promising start but it is merely a preliminary step. The services the Applicant has contacted, naturally, are voluntary[61] so it will be up to the Applicant to continue to engage and to seek help when he needs it. The Applicant told the Tribunal that he understands that he should have sought help himself when he was not getting it through the parole board in 2019.[62] I am satisfied that the Applicant is now more proactive than he was before, for example he has been attending Narcotics Anonymous meetings since January 2020[63] and when social distancing restrictions were implemented he continued to attend those meetings online. He has also joined a church.[64]
[61]    For example the witness from Lives Lived Well gave evidence to this effect at page 113, lines 1 to 9 of the transcript.
[62]    Transcript, page 71, lines 5 to 9.
[63]    Exhibit A6, Letter from Mr Evans dated 15 May 2020; Exhibit A7, Letter from Mr Evans dated 3 June 2020; and transcript, page 15, lines 7 to 10.
[64]    Transcript, page 16, lines 31 to 35.
Lastly, having heard evidence from the Applicant’s mother, I consider her to be a strong protective influence. She said if the Applicant is returned to the community she will live with him and the children, help look after the children and give the Applicant work through her cleaning business, although I note that the Applicant has an offer of some rendering work from a former employer.[65] She will also encourage him to engage with counselling services. She expressed zero tolerance for any more drug use or offending by the Applicant. I am satisfied that the Applicant’s mother will provide structure and support to the Applicant. The Applicant’s mother was in the Applicant’s life when he relapsed. However, she was working, helping to look after the children and coping with the Applicant’s ex-partner. She said she would retire to help the Applicant look after the children. Her focus now can be on the Applicant and the children.
[65] Exhibit A16, Letter of support from Mr Nicholson, dated 25 June 2020.
The Applicant’s current ability to abstain from drugs has not been tested in an unstructured environment. His previous abstention from drugs was tested in the wider community in New Zealand and in Australia. He remained drug free in New Zealand and then in Australia under difficult circumstances. I am satisfied that he is more motivated and better placed this time to avoid relapsing, and to seek immediate help if he does relapse. I am satisfied that the risk that the Applicant will resume drug use, and re-offend, is low-moderate.
Conclusion: Primary Consideration A
The Applicant’s offending is moderately serious. There is a low-moderate risk that he will engage in drug-related offending in the future. The harm to the community from the kinds of offending that he committed when dependent on methamphetamine – drug trafficking and drug-driving – is serious. I allocate this Primary Consideration A significant, but not determinative, weight in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child.
The Applicant has three biological children, Child A who is eight years old, Child B who is six years old, and Child C who is three years old. Under normal circumstances, these children live with the Applicant and he is their primary care-giver. The Applicant has been absent from their home due to his incarceration and the subsequent cancellation of his visa:
· between 1 December 2016 and 27 August 2018 (20 months); and
· since late September 2019 (10 months).
However, during both periods of incarceration, and during the time he spent in New Zealand, the Applicant maintained regular contact with his children.
All three children have been in the care of the Applicant’s mother since the beginning of the year,[66] and the Applicant’s ex-partner has had very little contact with them.
[66] Exhibit A3, Letter from Child Safety Officer, dated 28 May 2020.
The Applicant told the Tribunal, about the children’s mother:
“Yes, she just struggles to - she can’t cope with three boys. That’s just it. She cannot cope. She - for instance, we had a visit. They were supposed - she rang up - mum’s got the kids because she was going out to the pokies in all hours of the night and just not doing the right thing, using and - so mum’s taken the kids into her care and [the Applicant’s ex-partner] was told to - that we couldn’t have that around the children.”[67]
[67] Transcript, page 17, lines 23 to 28.
The Applicant was asked if his ex-partner went to play pokies in the middle of the night, leaving the children at home. He said his mother was living with her at the time to help with the children and to look after her.[68] The Applicant’s mother told the Tribunal:
“She just has a terrible pull towards the pokies in the middle of the night and she did come to grief with her mum when she was - when the children were staying with her mum because she disappeared. When her mum got up at 2 o’clock in the morning, [she] wasn’t there for the children and unbeknown to her mum because she’d climbed out the window. Which she was doing here, so unless [she] gets help and stops using amphetamines and gets help with her gambling because the gambling was taking over her whole life to where she can’t stay home at night, the children are just not safe. Just not safe with her and plus because she’s so stressed out with lack of sleep and on drugs, she is abusing the children.”[69]
[68] Ibid, lines 30 to 37.
[69] Transcript, page 90, lines 30 to 38.
The Applicant’s mother said his ex-partner is abusing the children by yelling, screaming and hitting them out of rage and leaving welts on their bare skin.[70] She said “I have to send my grandson home to New Zealand because it seems to be the older boy that she has it in for from birth”.[71]
[70] Ibid, line 43 to page 91, line 4.
[71] Transcript, page 91, lines 2 to 4.
She added:
“She needs 24 hour help and that’s what [the Applicant] does. He’s there 24 hours to help her and he intervenes on the children’s behalf. If she hasn’t got someone – this is when she’s straight too mind you, not – it’s worse with the drugs and gambling…”[72]
[72] Ibid, lines 20 to 24.
In relation to the current arrangement, the Applicant said:
“…Her mother also suffers from depression and anxiety and she is - since Christmas time - mum had the kids in September and told her that she needed to sort herself out and that, so she moved in with her mother. Then she’s come and picked up the kids from school and went to her mum’s, but her mum suffers to and has told her to take the kids to a woman’s refuge. I’ve then rung my mother and said, “my kids, they do not belong in a refuge and they’re not sleeping on the street.” So we put the tenants out of mum’s unit so that [ex-partner] could have a roof over her head and to get herself back on track, and mum’s taken the kids into her care…”[73]
[73] Transcript, page 17, line 43 to page 18 line 9.
The Applicant’s mother said:
“The boys were so out of control last time from being abused and neglected that I had a hard time keeping them under control (sic) the home doctor wanted to test them for A.D.D. but it wasn’t medical problems they had it was behavioural problems. As soon as their father came home they were well behaved and normal. He has a very calming and quiet manner no yelling or screaming or smacking just a quiet word “we don’t do that mate”, and time out on the step. This time around I moved very quickly with the boys so that we didn’t have those same out of control problems. I’ve had to ask their mother to go away and get better because her same abusive behaviour returned…”[74]
and:
“… I am presently caring for [the Applicant’s three sons] I have no support from their mother or her mother as they both suffer from mental illness and are both unwell. I have been caring for them since January in which time they have had the boys for a sleepover three times. The boys have rung them on numerous occasions only to get the answer phone. Their father rings them every morning to send them off to school and every night to put them to bed, despite the fact that some calls have cost $5.00 each and he has limited finances. Both their mother and grandmother live close by in Gladstone and I have offered to pick their mother up or take the boys over at any time, to no avail. I moved out of my unit and into [the Applicant’s house] for the boys stability…[The Applicant] did give their mother authority to access his super so the boys would have food but instead she spent $700 filling her pantry and buying her ex-partners six puppies new doggy collars, and she bought the boys a pizza that’s all they got out of [the Applicant’s] $1400…”[75]
[74] Exhibit A9, Letter of support from the Applicant’s mother, dated 22 May 2020.
[75] Exhibit A15, Letter of support from Applicant’s mother, dated 6 June 2020.
There is a document before the Tribunal entitled “CAPRICORNIA CORRECTIONAL CENTRE MESSAGE FOR PRISONER”, dated 20 January 2020. It says:
“Mum rang and has stated that she is concerned for the children’s welfare. She would like you to write a letter of authority for herself and possibly your mother in law authorising them to make decisions/care for/oversee the care of the children on your behalf while you are incarcerated…”[76]
[76] Exhibit A11, Capricornia Correctional Centre – Message to Prisoner.
There is a letter before me from a family lawyer to the Applicant’s other that indicates that the Applicant’s mother consulted the lawyer in late May 2020 regarding her concerns for the children.[77] There is a letter from the Department of Communities, Child Safety and Disability Services (“DOCS”) dated the following day acknowledging that the children are in her care.
[77] Exhibit A2, Letter from Best Wilson Buckley Family Law.
The Applicant’s mother gave evidence that recently the Applicant’s ex-partner told her that she would move away with the children and she (the Applicant’s mother) would never see them again.[78] She said his ex-partner told her she planned to take the children back to get housing, then go into residential rehabilitation with them.[79]
[78] Transcript, page 95, lines 25 to 30.
[79] Transcript, page 100, lines 20 to 28; and Exhibit A2, Letter from Best Wilson Buckley Family Law.
The Tribunal received evidence from the Applicant’s step-mother in New Zealand and a neighbour of the Applicant’s mother. The Applicant’s step-mother witnessed the Applicant’s communications with his children, and visits from the Applicant’s ex-partner and children, when the Applicant was in New Zealand. The Applicant’s mother’s neighbour knew the children. He witnessed the Applicant’s interaction with the children, the Applicant’s mother’s interaction with the children, and the Applicant’s ex-partner’s interaction with the children. Their evidence is also relevant to other issues canvassed below.
Based on all of the evidence, I am satisfied that when the Applicant lived with his children he was the primary caregiver, that the children have a positive relationship with him, that he is a good parent to his children, and that the children are settled and well behaved when in his care while there is some problematic behaviour when they are not in his care.
I am cognisant that the Applicant’s ex-partner and her mother were not present at the hearing to respond to the evidence that was given about them. However, there is consistent evidence before me that the Applicant’s ex-partner has a history of failing to adequately care for their children, that evidence being:
·the evidence of the Applicant and his mother;
·the Applicant’s revocation request lodged in November 2017 that stated that Child A was in the care of his brother in New Zealand;
·the phone message from the Capricornia Correctional Centre;
·the letter from a family lawyer setting out matters that the Applicant’s mother communicated to her; and
·the document from DOCS acknowledging that the children are in the care of the Applicant’s mother.
This evidence also tends to indicate that the ex-partner’s mother is of no assistance.
On top of that there is evidence from the Applicant and his mother that the ex-partner is addicted to methamphetamine and gambling. The Applicant’s step-mother gave evidence that when the Applicant’s then partner and the children visited him in her home in New Zealand, the ex-partner was more interested in what was going on around her than the children. The Applicant’s mother’s neighbour provided a letter of support for the Applicant to the effect that he is a positive influence in the children’s lives. He said the children were uncontrollable and defiant when the Applicant was not around. In response to questions from the Tribunal he said he used to help the children’s mother with them as they would “get out the door and run around the carpark area”[80] and he helped her settle them. When the Applicant was with them, they were calm and “really good”.[81] He said their behaviour when they were with the Applicant’s mother was a six out of ten. Their mother yells, screams and swears at them even in the presence of the Applicant’s mother. The mother’s neighbour evidence seemed frank and uncontrived, and I accept it. I find that it tends to corroborate the evidence of the Applicant and his mother that the children’s mother is verbally abusive to the children. Further, I accept the Applicant’s mother’s evidence that the children’s mother is physically abusive and neglectful to the children. I do not make findings like these lightly especially when the children’s mother did not have an opportunity to respond to the evidence about her. However, I consider the Applicant’s mother to be a reliable witness and much of her evidence about the children’s mother is corroborated by other evidence.
[80] Transcript, page 107, line 18.
[81] Ibid, line 36.

I am satisfied that the mother of these three children, even when she is not using drugs, is not able to provide even one of them with proper care. I find that she is addicted to methamphetamine and gambling and these matters make her even less able to provide a safe environment and proper care for the children. I find that she abuses and neglects the children when they are in her care. I have no confidence in any member of her family to help provide proper care for the children.
The Applicant’s mother currently fulfils a parental role for all three children and she gave evidence that she would continue to do so as long as she was able to, although she thinks the children need their father with them. She is 66 years old and has some health problems. She is concerned that she has no legal rights to keep the children in her care, even after approaching DOCS about her concerns for their welfare and being told by DOCS, after they interviewed her and the children’s mother, that the children’s mother should not have unsupervised access to the children. I accept that the children’s mother has told the Applicant’s mother that she will take the children into her care and the Applicant’s mother will never see them again, and that she may follow through on that threat in relation to one, two or all three children. I am satisfied that the Applicant’s mother could not stop his ex-partner from taking the children into her care.
The Tribunal sought to explore with the Applicant the possibility of his children moving to New Zealand with him if he were to be deported. If that were to happen, his mother would also move to New Zealand to help him care for the children. However, he does not know if he would be allowed to take the children to New Zealand with him without his ex-partner’s consent, and Child B does not have a current passport - his passport expired in January 2020.[82] He said his ex-partner wants the children but cannot look after them, and that sometimes his ex-partner gives consent for Child B to get a passport and then she withdraws it.[83] It may be that the Applicant could take Child A and Child C to New Zealand with him without his ex-partner’s consent. However, that is speculative and it leaves Child B separated from his brothers and father and possibly in a situation of abuse and neglect. It may be that the children’s mother would give consent for Child B to get a passport, however that seems even more speculative, and quite unlikely given her representations to the Applicant’s mother that she wants the children in her care.
[82] Exhibit G1, G-Documents, G23.
[83] Transcript, page 77.
Due to the young ages of the children, there are many years in which the Applicant can fulfil a positive parental role for each child. The evidence is overwhelmingly that he is a loving, engaged father who takes good care of his children and encourages good behaviour in an appropriate way – when he is not in gaol – and that he has a calming, positive influence on them. If he has care of the children, his mother will be able to help care for the children, and I am satisfied that she is a loving grandmother who is currently taking good care of these children. If the Applicant is removed to New Zealand, and the children remain here, he may be able to use electronic communication to establish and maintain relationships with them, but in this case, it is his presence in Australia that is crucial to the wellbeing of each. The Tribunal is satisfied that, if the Applicant is not at liberty in Australia, these three children face the very real risk of being taken into their mother’s care and abused and/or neglected or going into the foster care system which could result in them being separated from each other and possibly subjected to instability and inadequate care. Child B, not having a passport, is particularly at risk. These outcomes would be detrimental for these children and could cause irreversible psychological, emotional and developmental damage. There is a world of difference between the adverse outcomes that could flow from the Applicant’s deportation and the alternative scenario where the Applicant remains in Australia and provides these children with a loving, secure home life in which they are all together.
I would add that even if it could be guaranteed that the children would remain in the care of the Applicant’s mother in the event that he was deported, his deportation would still be against their best interests to some extent because they would not have the benefits I have referred to above of having him living with them.
Conclusion: Primary Consideration B
I am satisfied that it would be in the best interests of Child A, Child B and Child C for the cancellation of the Applicant’s visa to be revoked, and that this consideration weighs very heavily in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[84]
[84] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia at the age of 24 and has been here for the most part of 12 years;
·he committed his first offence 2 years after moving here;
·he has committed drug and alcohol-related offences, the most serious being driving under the influence (of drugs or alcohol) and street level drug trafficking;
·his offending is moderately serious in nature;
·there is a low – moderate risk of re-offending;
·there are long periods when he has not re-offended because he has managed to abstain from alcohol and drugs, and his recent relapse occurred when he was experiencing acute emotional hardship;
·he was in gainful employment from 2008 to 2010 and from 2012 to 2016, thereby making a contribution to the Australian Community;
·he has always been the main breadwinner and primary carer of his children except for periods when he has been incarcerated or his visa was cancelled and when his visa was cancelled he worked in New Zealand and sent money to his family in Australia; and
·if he is returned to New Zealand, it will likely adversely impact his three children in the way described above.
Conclusion: Primary Consideration C
The Applicant has breached the trust of the Australian community and he realises that. Taking all of the above matters into account, Primary Consideration C weighs in favour of non-revocation of the Decision under Review to a limited extent.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia since the age of 24. He commenced offending only two years after his arrival. He is not entitled to a degree of tolerance under paragraph 14.2(1)(a) of the Direction.
The Applicant spent several years in gainful employment which goes in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant has very strong familial ties with his mother and his three children who live in Australia. There are letters of support from his cousin and a friend before the Tribunal indicating he has positive relationships with those people, although it is not apparent whether his cousin lives in Australia or New Zealand. Further, the Applicant said he is now a member of a church and a fellowship of people who are good influences. I am satisfied that the Applicant has strong familial ties and some social ties to the Australian community. If he is returned to New Zealand, it will sadden his mother and presumably his friends will miss him. More importantly, his three children will be put in a predicament where they will be at risk of neglect and abuse or being placed in foster care.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of a high level of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 36 years old and he does not claim to have any medical or psychological problems, although he has a susceptibility to methamphetamine addiction.
He has experience bricklaying, cleaning and doing other manual labour. When he lived in New Zealand recently, he helped his father paint houses. I am satisfied that he has reasonable employment prospects in New Zealand. As a citizen he is also entitled to income support.
The Applicant has a father, step-mother and two siblings in New Zealand.[85] He said he does not usually get along with his siblings:[86] his sister left home at 15,[87] and his brother drinks a lot whereas he does not drink anymore.[88] His father is very sick and both the Applicant and his step-mother said it would put strain on his father for the Applicant to live with him. His deceased best friend’s mother also lives in New Zealand. The Applicant said he lived with her for a time and he thinks she might help him if he moved back. The Applicant lived in New Zealand until he was 24 and he has made several trips back since then. I am satisfied that he has social connections in New Zealand.
[85]    Exhibit R3, Supplementary G-documents, page 201.
[86]    Ibid, page 204.
[87]    Transcript, page 20, lines 41 to 42.
[88]    Transcript, page 19, line 42.
It is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.
It is likely that the Applicant will face some difficulty in re-establishing himself in New Zealand as he will have to secure accommodation and obtain a job or arrange income support. However, any such difficulty would be short-term only and would not prevent him from successfully re-settling there.[89]
[89] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
Accordingly, I am of the view that this Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs heavily in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs significantly in favour of non-revocation;
·Primary Consideration B weighs very heavily in favour of revocation;
·Primary Consideration C weighs in favour of non-revocation to a limited extent; and
·There is some risk that the Applicant will resume drug use and thereby commit drug‑related offences that have the potential to cause harm, including serious harm, to members of the Australian community. It would take a lot for another relevant factor, or other relevant factors, to outweigh the interest in protecting the Australian Community. The risk of harm to the Applicant’s children, if he is returned to New Zealand, is higher and more direct than the risk that the Applicant will harm members of the Australian Community. Further, the risk of harm to the Applicant’s children includes serious harm. The factors in favour of non-revocation of the cancellation of the Applicant’s visa, even when combined, do not outweigh the factors in favour of revocation, particularly Primary Consideration B.
Accordingly, I am satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
The Decision under Review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa be exercised.

I certify that the preceding 155 (one hundred and fifty-five) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

................................[SGD]........................................
Associate
Dated: 30 July 2020
ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (pages 1-187)

R

-

26 MAY 20

R1

Respondent’s Statement of Facts, Issues and Contentions (pages 1-20)

R

1 JUL 20

3 JUL 20

R2

Respondent’s Tender Bundle (pages 1-116)

R

-

3 JUL 20

R3

Supplementary G-Documents (pages 188-205)

R

-

9 JUL 20

1 JUL 20

A1

Letter from Parol Board (3 pages)

A

5 JUN 20

15 JUN 20

A2

Letter from Best Wilson Buckley Family Law (two pages)

A

27 MAY 20

15 JUN 20

A3

Letter from Child Safety Officer (one page)

A

28 MAY 20

15 JUN 20

A4

Letter from neighbour of the Applicant’s mother (one page)

A

1 JUN 20

15 JUN 20

A5

Queensland Corrective Services Administrative Form, Information Notice Security Classification (3 pages)

A

23 MAR 20

8 JUL 20

A6

Letter from Mr Evans (one page)

A

15 MAY 20

8 JUL 20

A7

Letter from Mr Evans (one page)

A

3 JUN 20

8 JUL 20

A8

Letters from the Applicant’s father (3 pages)

A

undated

8 JUL 20

A9

Letter of support from the Applicant’s mother (two pages)

A

22 MAY 20

8 JUL 20

A10

Letters and notes to the Applicant from the Applicant’s mother (6 pages)

A

undated

8 JUL 20

A11

Capricornia Correctional Centre – Message to Prisoner (one page)

A

20 JAN 20

8 JUL 20

A12

Letter of support from Ms Hemara (two pages)

A

18 JUN 20

8 JUL 20

A13

Letter of support from Ms Bunting (one page)

A

undated

8 JUL 20

A14

Artwork and letters from Applicant’s children

A

-

10 JUL 20

A15

Letter of support from Applicant’s mother (two pages)

A

6 JUN 20

8 JUL 20

A16

Letter of support from Mr Nicholson (one page)

A

25 JUN 20

8 JUL 20

A17

Letter from Lives Lived Well (two pages)

A

9 JUL 20

10 JUL 20

A18

Letter of support from Applicant’s step- mother (one page)

A

10 JUL 20

10 JUL 20

A19

Information Privacy access decision (pages 1-4)

A

8 JUL 20

10 JUL 20

A20

Information Privacy released documents (pages 1-58)

A

-

10 JUL 20

[2020] AATA 2578

30 July 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (pages 1-187)	R	-	26 MAY 20
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1-20)	R	1 JUL 20	3 JUL 20
R2	Respondent’s Tender Bundle (pages 1-116)	R	-	3 JUL 20
R3	Supplementary G-Documents (pages 188-205)	R	-	9 JUL 20 1 JUL 20
A1	Letter from Parol Board (3 pages)	A	5 JUN 20	15 JUN 20
A2	Letter from Best Wilson Buckley Family Law (two pages)	A	27 MAY 20	15 JUN 20
A3	Letter from Child Safety Officer (one page)	A	28 MAY 20	15 JUN 20
A4	Letter from neighbour of the Applicant’s mother (one page)	A	1 JUN 20	15 JUN 20
A5	Queensland Corrective Services Administrative Form, Information Notice Security Classification (3 pages)	A	23 MAR 20	8 JUL 20
A6	Letter from Mr Evans (one page)	A	15 MAY 20	8 JUL 20
A7	Letter from Mr Evans (one page)	A	3 JUN 20	8 JUL 20
A8	Letters from the Applicant’s father (3 pages)	A	undated	8 JUL 20
A9	Letter of support from the Applicant’s mother (two pages)	A	22 MAY 20	8 JUL 20
A10	Letters and notes to the Applicant from the Applicant’s mother (6 pages)	A	undated	8 JUL 20
A11	Capricornia Correctional Centre – Message to Prisoner (one page)	A	20 JAN 20	8 JUL 20
A12	Letter of support from Ms Hemara (two pages)	A	18 JUN 20	8 JUL 20
A13	Letter of support from Ms Bunting (one page)	A	undated	8 JUL 20
A14	Artwork and letters from Applicant’s children	A	-	10 JUL 20
A15	Letter of support from Applicant’s mother (two pages)	A	6 JUN 20	8 JUL 20
A16	Letter of support from Mr Nicholson (one page)	A	25 JUN 20	8 JUL 20
A17	Letter from Lives Lived Well (two pages)	A	9 JUL 20	10 JUL 20
A18	Letter of support from Applicant’s step- mother (one page)	A	10 JUL 20	10 JUL 20
A19	Information Privacy access decision (pages 1-4)	A	8 JUL 20	10 JUL 20
A20	Information Privacy released documents (pages 1-58)	A	-	10 JUL 20