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

Hayde and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1991 (29 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/5280
Re:Denis Hayde
APPLICANT

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

DECISION
Tribunal:Mr S Evans, Member
Date:29 June 2021
Place:Sydney

The Tribunal decides that the decision under review, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs dated 20 August 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside. In substitution it is decided that the decision to cancel the visa made on 14 August 2019 is revoked.
............................... [SGD].........................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – Applicant’s visa mandatorily cancelled per subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”) – cancellation not revoked – application for review – issue to be determined: whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act – provisions of the Act considered – provisions of Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA considered – Applicant’s background and criminal history considered – decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Mr S Evans, Member
29 June 2021
INTRODUCTION

The applicant, Denis Hayde, seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) not to revoke the decision made pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”) to cancel his Class TY Subclass 444 Special Category (Temporary) visa.
Mr Hayde is a citizen of New Zealand who is currently 47 years of age. He first arrived in Australia on 22 September 1998 aged 24. On 26 June 2019 Mr Hayde was convicted by the Perth District Court of Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine) for which he was sentenced to 12 months’ imprisonment.
By reason of his sentence of more than 12 months’ imprisonment, Mr Hayde’s Class TY Subclass 444 Special Category (Temporary) visa was mandatorily cancelled under subsection 501(3A) of the Act on 14 August 2019 (“the original decision”).
On 9 September 2019 Mr Hayde made representations seeking revocation of the mandatory cancellation of his visa. Following his release from prison, Mr Hayde was placed in immigration detention.
On 23 February 2020 Mr Hayde voluntarily departed Australia and returned to New Zealand, where he remained at the time of the hearing.
On 20 August 2020 a delegate of the Respondent decided not to revoke the mandatory cancellation of Mr Hayde’s visa (“the reviewable decision”). On 31 August 2020 Mr Hayde applied for review of the delegate’s decision not to cancel his visa with the Administrative Appeals Tribunal.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a)that the Applicant passes the character test as defined by paragraph 501(6)(a) and subsection 501(7) of the Act; or
(b)that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 90
Subsection 501(3A) of the Act provides:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(7)(c) provides that for the purposes of this section, a person does not pass the character test if the person has a substantial criminal record as defined in subsection 7. Subsection 7 provides:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
Subsection 501CA(3) provides:
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”).
Paragraph 5.2 of Direction 90 provides principles which I have considered when reviewing Mr Hayde’s application. It relevantly provides:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction identifies the considerations the Tribunal must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation of a visa. The primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be considered secondary considerations as in certain circumstances other considerations may outweigh primary considerations.
The primary considerations in the Direction are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) family violence committed by the non-citizen;
(3) best interests of minor children in Australia affected by the decision; and
(4) expectations of the Australian Community.
Direction 90 also sets out other considerations which must be taken into account where relevant which include but are not limited to:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community.
I am satisfied that Mr Hayde made representations in accordance with the invitation from the Minister such that the requirements of paragraph 501CA(4)(a) have been met.
There is no dispute that Mr Hayde does not pass the character test pursuant to section 501(6) of the Act as he has been sentenced to a term of imprisonment for 12 months or more meaning he has a substantial criminal record.
I will now turn to considering whether there is another reason why the original decision should be revoked in line with the Direction.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
I must have regard to the protection of the Australian community from criminal or other serious conduct. When considering the protection of the Australian community, Direction 90 requires decision-makers to have regard 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
Possession of a Prohibited Drug with Intent to Supply and associated offending
On 26 June 2019 Mr Hayde was convicted in the Perth District Court of Possession of a Prohibited Drug With Intent to Supply (Methylamphetamine) for which he was sentenced to 12 months imprisonment.
The sentence related to offending that occurred on 19 August 2018. At 11:30pm Mr Hayde’s vehicle was stopped by police. During a search of the vehicle, police located a black bag behind the passenger seat containing a pouch in which seven clip seal bags each containing a quantity of methylamphetamine with a total weight of 5.95 grams and 80 percent purity were located. Police also located a mobile phone enabled with the encrypted messaging application Signal. On review of the mobile phone, police identified content indicative of Mr Hayde being involved in the sale and supply of methylamphetamine.
Mr Hayde told the court that the drugs he was apprehended with were drugs that he uses with his friends. He said that he and his friends normally chipped in together to buy a large quantity of drugs which they would split into their own personal quantities. Mr Hayde accepted that the amount of drugs seized was an intent to sell or supply. He told the court that he had had a serious accident on his motorcycle in 2018 following which he became caught up with an old group of friends who use drugs.
In Sentencing Mr Hayde, District Court Judge Braddock detailed the circumstances leading to the offence:
… I accept that this was something that you had gotten into following your injury in the beginning of 2018, that basically up until that point in time you were a man of good character having not caused any trouble, there is nothing on your record and, although you’ve used cannabis over the years from what you said to the pre-sentence report writer, and to some extent in conjunction with your arthritis condition, clearly this methamphetamine is a recent departure in the circumstances that I’ve been told about. You had a bad break of the collarbone, slow to heal, you were working as a freelance photographer, you weren’t capable of doing that and you fell into a social group that were not that desirable at that time and that’s where the drugs come from.
Whilst accepting that the quantify of drugs Mr Hayde was found in possession of was “at the lower end”, Judge Braddock also noted the seriousness of the offence:
I accept that yours is at the lower end of that but it’s still a very serious matter. And it is not just a couple of grams. We’re talking about six, getting on for six grams, so that would, at the most favourable view of this situation, have involved a good few of your mates being kept in their supplies and yourself, and I don’t - I think it is fair to say this would put you in that position that’s generally described as a low-level user-dealer distributing or getting money from it. At this level it doesn’t really matter. It’s still going into the community.
On 5 July 2019 Mr Hayde was sentenced in the Rockingham Magistrates Court and fined for Possess a Prohibited Drug (Cannabis), Possessed a controlled weapon, Possessed drug paraphernalia in or on which there was a prohibited drug or plant (two charges) and Possession of Housebreaking Implement to commit a Crime at night time for which he was fined a total of $1,100.00. The offences were recorded to have taken place alongside the possession of prohibited drug with intent to supply offence detailed above. In addition to the quantity of methylamphetamine, police found cannabis, capsicum spray, lock picks, a glass smoking instrument containing traces of methylamphetamine and located a knife concealed in boot of Mr Hayde’s vehicle.
On 15 February 2019 Mr Hayde was fined $300 for Driving with prescribed illicit drug. The offending occurred mid-afternoon on 21 November 2018 when Mr Hayde was riding his motorbike and was involved in an accident. He was subsequently found to have methylamphetamine and amphetamine in his blood at the time of the accident.
In May 2019 Mr Hayde was fined for possession of cannabis, which appeared to be for personal use.
In 2006 Mr Hayde was fined for driving a motor vehicle whilst unlicensed.
In considering the nature and seriousness of Mr Hayde’s offending, I note that Mr Hayde has not committed a violent crime, against women or children, an act of family violence nor a sexual crime.
However, sentencing involving a term of imprisonment is a reflection of the seriousness of the offence. Mr Hayde was sentenced to a 12 month term of imprisonment which included a 25 percent discount for his guilty plea. This is a significant term of imprisonment.
The supply of prohibited drugs is an insidious and serious offence, which has devastating impact on the Australian community. The damage that distribution of methylamphetamine causes to the community was reflected in Judge Braddock’s sentencing remarks where she indicated that the conduct of Mr Hayde had the potential to harm “more vulnerable or mentally unstable or younger [people]”.
I am satisfied that Mr Hayde’s offending should be viewed seriously.
The risk to the Australian community
Paragraph 8.1.2(1) of Direction 90 provides that in considering the protection of the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm lessens as the seriousness of the potential harm increases. In assessing the risk posed by the non-citizen to the Australian community, I should consider, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending and evidence of rehabilitation achieved by the time of decision, with weight to be given to the time spent in the community since the non-citizen’s most recent offending.
The nature of the harm to individuals or the Australian community should Mr Hayde continue to offend is properly informed by the nature of his offending to date. If he were to drive under the influence of drugs there is a significant risk that it could result in harm to members of the Australian community including other road users. The use and distribution of drugs such as methylamphetamine in the community have a devastating impact on the communities in which they are used including to the individual users, their families and the broader community.
The likelihood of Mr Hayde engaging in further criminal or other serious conduct
In a written submission provided to the Respondent in support of his original application to have the mandatory cancellation revoked, Mr Hayde details the events prior to his August 2018 offending.
In early 2018 Mr Hayde reports that he had a serious motorbike accident which resulted in him breaking four ribs, his collarbone being ripped from his shoulder and a broken right hand. He was in a great deal of pain and he had difficulty performing the simplest of tasks. He experienced difficulty sleeping and was unable to work.
As he recovered he became isolated from his usual support network including his work colleagues and loved ones. As he could not ride his motorbike he was reliant on public transport. He fell in with a circle of friends who regularly used drugs and did not work. Mr Hayde contends that until his accident, his drug use was recreational and occasional, but it began to increase significantly.
The Respondent submits that Mr Hayde’s account of his drug use is inconsistent. Specifically, it is contended that Mr Hayde was in fact using methylamphetamine prior to the accident and that he has attempted to use the accident to gain sympathy from the courts in relation to the drug offence.
Mr Hayde contends that he was recreationally using drugs prior to the motorbike accident and that following the accident his drug use gained momentum as he became isolated from his regular social network and was unable to work.
Whilst in prison Mr Hayde had time to reflect on the offending and the circumstances of his drug use. He claims to have attended up to 30 sessions of Narcotics Anonymous (“NA”) in prison and appreciates how important it is to remain entirely abstinent of drugs and utilise the resources available to assist in doing so. He writes that in hindsight his arrest was beneficial as it stopped him from proceeding further down the path that he was on and allowed him to regain control of his life. He has ceased contact with the circle of friends with which he used drugs and is confident he will neither use drugs in the future nor reoffend.

A pre-sentence report from Adult Community Corrections dated 20 June 2019 is in evidence before the Tribunal. Consistent with Mr Hayde’s present account, it is recorded that his offence was committed within a context of poor coping skills following a serious injury sustained in a motorbike accident which prevented him from working. The author writes that Mr Hayde had not recorded any similar convictions in the past “lending some credibility to his assertions that his foray into methyl-amphetamine use was out of character”. It is noted, however, that Mr Hayde admitted to smoking cannabis in the past to assist in the treatment of rheumatoid arthritis, which suggests that he is not as averse to using illicit substances as he claims.
The pre-sentence report recommends that Mr Hayde may benefit from programmatic intervention that might help him develop better coping skills for any future challenges he might experience. Mr Hayde is recommended as a suitable candidate for community supervision with the author noting that Mr Hayde was candid about how he came to be involved in the drug culture and seemed genuine in his regret for using methylamphetamine as a coping mechanism after the motorbike accident. The report states that Mr Hayde impressed as having accepted full responsibility for his offending.
In regards to counselling, the report notes that whilst Mr Hayde was determined to restore his life to the “pro-social” one he had prior to the offence, it was of concern that he did not consider that counselling would be of benefit to him. It was noted, however, that Mr Hayde presented as having an adequate understanding of his triggers and achieved abstinence through “self-counselling”.
Though Mr Hayde subsequently attended NA meetings whilst in prison, his position remains that he has put his drug use behind him and that ongoing treatment, therapy and group support is not something he would benefit from. He considers that his drug problem is in the past, he is able to manage his wellbeing by avoiding drugs all together and is motivated to do so given how much damage they did to his life.
Mr Hayde’s strong prospects of reform were identified by Judge Braddock in her sentencing remarks. She said in part:
As I have already said to your counsel this morning, you shouldn’t be here. It is very sad to see a man of your age and background sitting where you sit because it shouldn’t have happened. You have a good background, a good upbringing in New Zealand, you have worked in many trades, you’ve clearly been a responsible member of the community. You’ve had some sporting success and some sporting activities and, in effect, all the indicators would suggest you shouldn’t be here at all, and that is another indication of the damage that this drug can do.
I have read the pre-sentence report. You have been very frank with the writer of it, and you’ve always used cannabis to some extent but packed that in about two years’ ago. You used it over time anyway but it records that you used some from an early age and then when you were struggling with the rheumatoid arthritis, but that’s simply by way of background. It doesn’t in any way aggravate this offence.
The pre-sentence report writer tells me that you have said that you haven’t used any illicit substances for two months. If that is correct that is greatly to your credit. You were, according to the report, not particularly interested in counselling because you didn’t see there was any benefit to be gained from it. Well, that may be your feeling at the present time but staying off drugs once you’ve been addicted is a long-term project and it might be that some form of counselling would be of assistance to you just for the purposes of avoiding a repetition of this behaviour.
…
You pleaded guilty at the first opportunity, that’s 25 per cent under section 9AA. That means the law permits effectively recognition of co-operation with the process of justice and it also reflects, in my view, that you are remorseful for what you have done, or at least you regret it seriously because of the consequences that it has had. I accept that you have taken some steps towards rehabilitation and, effectively, I consider you to be a man of good character.
Noting that Mr Hayde is currently in New Zealand, there is no evidence before the Tribunal which contradicts his claim not to have taken drugs since the offending.
In the course of the hearing Mr Hayde provided an explanation for the offences for which he was sentenced in the Rockingham Magistrates Court in July 2019. When he was arrested in August 2018, police found a “multi-tool containing a folding knife clipped to his belt, as well as a large knife concealed against his left ankle”. Mr Hayde explained that he carried the knife to assist with his arthritis. He said that he could not even open a packet of chips with his arthritis. The “capsicum spray”, he contends, was returned to him from a female friend, hence it was in his possession. He claims to have purchased it for her at a deli as his friend was in fear of harm.
In relation to these offences, I accept the convictions as recorded, noting that he received a fine for each which indicates the level of seriousness with which they were viewed by the court.
The Respondent contends that Mr Hayde has sought to downplay his responsibility for his offending and there is little evidence of him having sought or received treatment for his drug use or criminal behaviour.
Conclusion as to the risk to the Australian community
I accept that Mr Hayde’s offending was serious. Should he continue to use and supply drugs, particularly harmful drugs such as methylamphetamines, it would be expected to have a detrimental impact on the broader Australian community. Driving whilst under the influence of drugs is also very serious and Mr Hayde has first-hand experience of the damage that can be caused through motor vehicle accidents. The harm that he may cause to both himself and other road users is potentially catastrophic.
Mr Hayde has, as Judge Braddock observed, been “frank” in his dealings with authorities. He pleaded guilty to his most serious offending at the earliest opportunity. He has been honest about his long-term use of cannabis, which he contends he used in part to ameliorate the side effects of arthritis medication he no longer takes.
For all that, Mr Hayde’s account of his offending history does not align neatly with the verifiable facts which are before the Tribunal, giving some weight to the reservations raised by the Respondent. The charges for which he appeared before Judge Braddock related to offending which occurred in August 2018. Whilst Judge Braddock accepted that Mr Hayde’s use of methylamphetamine was in part attributable to the circumstances of his accident, there is only evidence relating to an accident which occurred in November 2018, three months after the offending. Mr Hayde contends that the accident in which he was seriously injured occurred in early 2018. Should this be accepted, on the evidence it is clear that he was again riding his motorcycle in November 2018, which would appear inconsistent with his account of the circumstances at the time.
During the hearing Mr Hayde reflected that people used to come to him for advice and that his own descent and imprisonment has taken a toll on him and given him cause to reflect on how that occurred. He regrets how much he strayed from his previous life when his drug use spiralled out of control.
I accept Mr Hayde has strong intentions to stay away from drug use and to rebuild his life. He appears determined not to use drugs again in the future and demonstrated insight into how rapidly his drug use took him from being an active and useful member of the community to being isolated, breaking the law and then incarcerated.
In considering the totality of the evidence I am satisfied that Mr Hayde represents a low risk to the Australian community for the following reasons:
·he has not used drugs since his imprisonment;
·he has been honest about his use of drugs including cannabis and this is reflected in the pre-sentencing report and observations of Judge Braddock;
·Mr Hayde is currently 47 years of age and with the exception of a 2006 conviction for driving whilst unlicensed, his criminal record was unremarkable until 2018;
·Mr Hayde’s evidence indicates a level of insight into not only his offending but how his personal and social circumstances encouraged his drug use to expand beyond what he was able to manage; and
·Mr Hayde has paid a high price for his offending having experienced a slow and painful recovery from the motorbike accident followed by imprisonment and having his visa cancelled.
I therefore give medium weight to this consideration, which weighs in favour of not revoking the mandatory cancellation decision.
PRIMARY CONSIDERATION 2 – WHETHER THE CONDUCT ENGAGED IN CONSTITUTED FAMILY VIOLENCE
There is no evidence that this consideration is relevant to Mr Hayde’s application.
PRIMARY CONSIDERATION 3 – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Direction 90 sets out a number of factors to be considered in assessing the best interests of minor children. These include the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in relation to the child; the likely effect that any separation from the person would have on the child, whether there are any other people who fulfil parental roles with the child, any known wishes of the child, and any evidence that the person abused or has neglected the child or that the child has otherwise suffered from trauma from the person’s actions including through exposure to family violence.
Mr Hayde has no children of his own. Though his nieces live in Australia he has limited contact with them. Should he be allowed to return to the community Mr Hayde intends to live with his friend James McCann and his wife, who have two children aged approximately six and four. Mr Hayde submits that he is close to the children and they call him their uncle.
There is very little evidence that Mr Hayde has a relationship with any minor children in Australia such that their interests would be affected by the decision to cancel his visa. He does not have a parental relationship with any of the children, though I accept that he may expect to play a positive role in the lives of Mr McCann’s two children.
For these reasons this consideration weighs in favour of revoking the cancellation of Mr Hayde’s visa, though I afford it little weight.
PRIMARY CONSIDERATION 4 – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4 of the Direction requires me to consider the expectations of the Australian community. Subparagraph 8.4(1) relevantly states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction proceeds to list specific conduct which the Australian community as a whole expects would raise serious character concerns and an expectation that the person would not hold an Australian visa. Mr Hayde’s offending is not of the nature that is identified in the Direction as raising concerns such that he should not continue to hold a visa.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, 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. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.4 of Direction 90.
Mr Hayde has breached the expectations of the Australian community by not obeying the law while in Australia. Observing the norm and the principles outlined in in paragraph 5.2 of the Direction and taking into consideration that Mr Hayde’s offending does not raise serious character concerns of the kinds referred to in subparagraph 8.4(2), I am satisfied that the expectations of the Australian community would weigh against revoking the visa cancellation.
OTHER CONSIDERATIONS SET OUT IN THE DIRECTION
I now turn to considering the other relevant considerations set out in the Direction.
Extent of impediments to Mr Hayde if he is removed from Australia
Paragraph 9.2 of the Direction requires me to consider the extend of impediments Mr Hayde may face if removed from Australia in establishing himself and maintaining a basic living standard in the context of what is generally available to other citizens of New Zealand.
Mr Hayde is currently in New Zealand, having left Australia voluntarily on 23 February 2020. He told the Tribunal that all his belongings remain in Australia. When he first arrived in New Zealand he had to seek accommodation at a homeless shelter. He now has longer term accommodation in a boarding house.
Having spent over 20 years living in Australia Mr Hayde submits that he has very few ties in New Zealand. His father, brother and half-sister live in New Zealand but is not close to them.
The Respondent submits that Mr Hayde lived in New Zealand for the first 24 years of his life and has done so once again from February 2020. Further, he would not encounter significant language or cultural barriers when reintegrating into New Zealand society. He would also have access to the same social, medical and economic support which is available to other New Zealand citizens, which the Respondent submits are comparable to those available in Australia.
Mr Hayde has worked across a variety of fields whilst in Australia including as a dive-master, fabricator, manager and photographer. Whilst I accept the Respondent’s contention that he would be able to utilise these skills to obtain employment in New Zealand, I note that as of the date of hearing Mr Hayde was performing volunteer work at a night shelter.
In terms of the social support that is available to Mr Hayde in New Zealand, I accept that Mr Hayde have very limited access to social support in New Zealand. He has been in Australia for most of his adult life. His sister and stepfather still live in Australia, though it does not appear that Mr Hayde is particularly close to either of them. Whilst he travelled to New Zealand on occasion whilst living in Australia, his travels do not appear to be of such regularity as to indicate a close relationship with friends or relatives there.
Because of the lack of social support for Mr Hayde in New Zealand, his age and extended period in which he lived in Australia, I consider that this consideration weighs strongly in favour of revoking the mandatory cancellation.
Links to the Australian community
Paragraph 9.4 of the Direction requires me to consider the impact of the reviewable decision on Mr Hayne’s family members in Australia and the strength, nature and duration of any other ties he may have to the Australian community.
Mr Hayde submits that he has given much back to the community since he arrived in Australia in September 1998. He says that he loves Australia and it is where he has built his life for over 20 years. He believes that he has made a positive difference to the community. He claims to have a large support network in Australia and wishes to return to live and constructively contribute to the community again.
In evidence are character and personal reference for Mr Hayde from friends and colleagues.
James McCann writes that he has known Mr Hayde for over 20 years during which he has “always been a loyal, loving and supportive friend to me”. He writes that both he and his wife think of Mr Hayde as their brother and that their children refer to Mr Hayde as “Uncle”. In anticipation of him being deported Mr McCann and his wife were expecting to miss him greatly. They write that it is evident that Mr Hayde feels regret and remorse for his actions. Prior to his offending, Mr McCann writes that Mr Hayde was a passionate and committed supporter of a charity organisation and Mr McCann believes that Mr Hayde wishes to serve the community and help the people within it.
At the time of writing the reference Mr McCann was prepared to offer Mr Hayde employment at his company and residence in his family home. Mr Hayde told the Tribunal that the offer of employment remained and that he would be living with the McCann family and working with Mr McCann should he be allowed to return to Australia.
Mr Hayde says that the McCann’s are going through a difficult personal time due to health challenges and he cares deeply about them and would like to support them during this time. He notes that he would be required to do random drug testing as part of his employer’s insurance.
Gary O’Reilly writes that he has also known Mr Hayde for over 20 years and that he has given Mr Hayde advice and mentoring in the past. He also writes of Mr Hayde’s community service and volunteer work with charities.
Matthew O’Shea writes on 24 June 2019 that he has known Mr Hayde for over 10 years. He writes that Mr Hayde’s offending was extremely out of character. He considers Mr Hayde to be the first person who would go out of his way to help anyone in need and is always helping others. Mr Hayde has been an employee and remains a close personal friend of Mr O’Shea’s.
Thomas Greinacher writes that he has been a friend of Mr Hayde’s since early 2016. He is aware of Mr Hayde’s offending but believes that if Mr Hayde should be allowed to stay in Australia he can contribute in a positive way.
Mr Hayde has provided evidence of his considerable community participation. I accept that he began doing charity work in 2011 providing toys to underprivileged children through the annual West Australian Toy Run. He has also provided evidence of having been involved in telethons for fundraising, working for homeless charity HDStreetwise, raising funds for bushfire relief and providing pro-bono photography services for various causes he is supportive of.
I am satisfied that Mr Hayde has been made a positive contribution to the Australian community over the many years prior to his offending and that he has formed strong ties with friends who have a right to remain in Australia indefinitely. Consequently, this factor weighs in favour of revoking the mandatory cancellation decision.
CONCLUSION
Having considered Mr Hayde’s circumstances as they related to the considerations outlined in Direction 90, I am not required to weigh up these considerations.
The primary considerations regarding the protection of the Australian community and expectations of the Australian community weigh in favour of not revoking the visa cancellation. However, the primary consideration relating to the protection of the Australian community is afforded less weight than it might otherwise be on account of Mr Hayde’s lack of offending up until 2018 and strong prospects of rehabilitation as noted by Judge Braddock.
The primary consideration regarding family violence is not relevant to Mr Hayde’s application, and the best interests of minor children weighs marginally in favour of revocation, though I afford it little weight.
The other consideration regarding the extent of Mr Hayde’s links to the Australian community weighs heavily in his favour. It is clear that Mr Hayde was an active and community oriented individual prior to his offending and he has built up a substantial network of friends over time. The extent of impediments to removal weigh in favour of Mr Hayde and I place some weight on this given Mr Hayde has few social connections in New Zealand and his best prospects of employment are through his social support network in Australia.

On balance, I am satisfied that the correct and preferable decision is to revoke the mandatory cancellation of Mr Hayde’s visa.
DECISION
The Tribunal decides that the decision under review, being the decision of a delegate of the Respondent dated 20 August 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside. In substitution it is decided that the decision to cancel the visa made on 14 August 2019 is revoked.

I certify that the preceding 93 (ninety-three) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member

................................[SGD]........................................
Associate
Dated: 29 June 2021

Date(s) of hearing: 26 April 2021

Applicant: Self-represented

Solicitor for the Respondent: Mr T Aviram, Clayton Utz

[2021] AATA 1991

29 June 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Remedies

Date(s) of hearing:	26 April 2021
Applicant:	Self-represented
Solicitor for the Respondent:	Mr T Aviram, Clayton Utz