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

[2022] AATA 483

HCNV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 483 (16 March 2022)

Division:GENERAL DIVISION

File Number(s):      2021/9902

Re:HCNV

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:16 March 2022

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 9 December 2021, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant’s TY Subclass 444 Special Category (Temporary) visa is revoked.

.................................SGD.......................................

Emeritus Professor P A Fairall, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Special Category TY-444 visa – where visa was cancelled under s 501CA(4) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed –links to the Australian community – the strength, nature and duration of ties to Australia – mandatory cancellation of visa revoked - decision under review set aside and substituted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Local Court New South Wales, The Magistrates Early Referral into Treatment (MERIT) Program 

NSW Bureau of Crime Statistics and Research, Re-offending statistics for NSW

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

16 March 2022

1. The Applicant is a 39 year old New Zealand citizen, born in Vietnam. The present proceedings arise because of the mandatory cancellation of his visa on character grounds. The applicant faces the prospect of removal to New Zealand unless the decision not to revoke the mandatory cancellation decision is set aside by the Administrative Appeals Tribunal (‘the Tribunal’).

2. The visa in question was granted to the applicant when he re-entered Australia on 2 March 2012 after a short trip to Vietnam.[1] He was travelling as a New Zealand citizen, a status he had acquired as a minor. His father left Vietnam some 12 years after the fall of Saigon, taking with him his two sons, the applicant and his older brother. They lived in a camp in Thailand for about two years before resettlement in New Zealand in 1989. The applicant believes that he was then about seven years old.[2] His mother and sister joined the family in New Zealand, but soon afterwards, the marriage failed and his father moved to Australia, followed later by his mother and all three children. Unfortunately, the planned reconciliation in Australia did not last, and the young applicant was traumatised when his father left for a second time. He was badly affected by the family breakdown and started using hard drugs at high school, including heroin, dropping school before completing year nine. He has struggled with addiction at various times throughout his adult life. This has brought him into regular contact with the police and the courts.

   [1] G5/226.

   [2] Transcript, 25 February 2022, 122.

3. On 5 June 2020, after a seven year hiatus in his offending record, the car in which he was travelling as a passenger was stopped by police. It was plain to the officers that he was drug affected. He was ordered to get out of the car. He tried to run away. Four officers pursued him and one was hurt in the ensuing scuffle. Drugs and cash were found in his possession. After three days in hospital due to his drug use he was released on bail, charged with various offences pertaining to the drugs and with resisting an officer.

4. On 14 September 2020, while still on bail, he was subject to a traffic stop while driving. The police officer noticed an object that looked like a rifle in the car. It had a cylinder and a trigger. He said it was a toy gun that he made himself out of boredom. It fired pellets with compressed air. However, it satisfied the definition of ‘firearm’ under the relevant Act, and he was prosecuted for possessing it. To compound the matter, he was found with a small quantity of drugs.

5. For these two sets of offences he was sentenced by the Local Court of New South Wales to 20 months imprisonment with a non-parole period of 12 months. The sentence was reduced to 12 months imprisonment on appeal, with a non-parole period of 6 months. As noted by the sentencing judge, Judge Hanley SC, his addiction “spiralled out of control leading to his criminal history before the Court”. [3]

   [3] Sentencing remarks, Judge Hanley SC 22 February 2021: G2/37.

6. The sentence imposed was just on the 12 month limit for mandatory cancellation of his visa under subsection 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’). On 4 March 2021, his visa (Special Category TY-444) was cancelled on the basis that he was then serving a term of imprisonment on a full-time basis in a custodial institution, having been sentenced by a court to a term of imprisonment of 12 months or more.[4] He therefore automatically failed the character test.[5] On 7 March 2021, he requested that the decision to cancel his visa be revoked.[6] On 9 December 2021, a delegate of the Minister decided not to revoke the cancellation decision.[7]

   [4] Migration Act 1958 (Cth) (‘the Act’) sub-s 501(3A)(a)(i).

   [5] The character test is defined in subsection 501(6) of the Act.

   [6] G2/74.

   [7] G2//9.

7. On 17 December 2021, he applied to the Tribunal to review the delegate’s decision not to revoke the cancellation decision.[8] A hearing was conducted by videoconference over two days (24 and 25 February 2022). The applicant was represented by Mr Ahmadzai, of Crystal Migration Legal Services. The respondent was represented by Mr Zhang, of Clayton Utz. The applicant gave evidence, and called his mother Mrs Ngo and his fiancé, Ms Tugaga, as witnesses. Both parties filed submissions, and various documents, which are set out in an Appendix to these reasons.

   [8] G1/3.

   DECISION

8. It was accepted by the parties that the applicant fails the character test. I am satisfied that, at the time of the decision to cancel his visa, he had been sentenced to a term of imprisonment of 12 months or more, and that he was then serving a custodial sentence. He therefore has a substantial criminal record.[9]

   [9] The Act sub-ss 501(6), (7)(c).

9. Under section 501CA(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.

10. The issue for the Tribunal is therefore whether, despite failing the character test, there is ‘another reason’ why the decision to cancel his visa should be revoked. The Tribunal is satisfied, for the detailed reasons that follow, that there is such a reason. Therefore, the decision of the delegate is set aside with the consequence that his visa is not cancelled.

    THE DISCRETION UNDER SUBSECTION 501CA(4)

11. In exercising the discretion under subsection 501CA(4) of the Migration Act, the Tribunal is bound by subsection 499(2A) to comply with Direction No. 90 (‘the Direction’), the purpose of which is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. The Direction is highly prescriptive, but the weight to be assigned to the various considerations identified therein is entirely a matter for the Tribunal.

12. Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task.  Paragraph 5.2 sets out five principles:

    (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 measureable 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 noncitizens 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 (emphasis added).

    (5)  Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

13. Part 2 of the Direction provides guidance in relation to exercising the discretion. Under paragraph 8, four primary considerations (para 8) are identified. They are as follows:

    ·     PC1: protection of the Australian community from criminal or other serious conduct;

    ·     PC2: the presence of family violence;

    ·     PC3: the best interests of minor children in Australia; and

    ·     PC4: expectations of the Australian community.

14. Under paragraph 9, other considerations must also be taken into account, where relevant. In the present case, these considerations include: the extent of impediments if removed; the impact on victims; and links to the Australian community, including the strength, nature and duration of ties to Australia, and the impact on Australian business interests.

15. The Direction contains principles and rules relating to the weighing of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances a non-primary consideration may be dominant in the case.[10]

    [10] FYBR v Minister for Home Affairs [2019] FCAFC 185.

16. The Direction also refers to a myriad of subsidiary issues relevant to each of the specified considerations. I have regard to each of these factors referred to in the Direction.

    PRIMARY CONSIDERATIONS

    Protection of the Australian community: PC1

17. Paragraph 8.1(1) provides that decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers upon non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.

18. In having particular regard to the principle contained in 8.1(1) I note the applicant’s extensive record. The respondent was “fairly confident” that the criminal record included all offences committed by the applicant.[11] There was an element of doubt simply because the applicant had used various ‘aliases’, either variations of his own name and birthdate, or by using another person’s name, such as that of his brother.[12] In oral evidence, he admitted to having done this “a long time ago”.[13]

    Offending as a juvenile (<18)

    [11] Transcript, 24 February 2022, 11.

    [12] G2/28, G2/66.

    [13] Transcript, 24 February 2022, 20.

19. The applicant had three Children’s Court appearances, two in 1997, and in May 2000. His first conviction as a juvenile (robbery in company) is recorded on 11 September 1997, a little over two years after arriving in Australia, when he was 14 years old. He was convicted of offences of dishonesty (larceny, shoplifting, goods in custody), driving offences (possess implements to take/drive conveyance, take and drive conveyance without consent of owner, drive without licence, negligent driving); offences against the person (common assault, robbery in company) and an offence against the administration of justice (failing to appear Bail Act). As a juvenile, he was convicted of 14 offences in all, for which he received juvenile justice supervision. Significantly, none of these offences involved drugs,[14] although three involved personal violence.

    [14] Respondent’s Statement of Facts, Issues and Contentions, 1.

    Offending as an young person (18 – 24 years of age)

20. His record as a young person is very poor. From 18 to 24 years of age, he was convicted of at least one offence in all but one year.

    (a)In 2001, at 18 years of age, he committed the first drug offence (administering or attempting to administer a drug to another) and was fined $150. He was also convicted of stealing, shoplifting, possession of stolen goods, and entering inclosed lands without excuse. He was also convicted on a single count of possession, and entering a vehicle without consent, both of which were dismissed under section 10A.[15] He committed seven offences in all, for which modest fines or community service orders were imposed.

    (b)In 2002, he was convicted of taking and driving conveyance, and possession of implements to steal, which attracted his first sentence of imprisonment – for 3 months.[16]

    (c)In 2004, at 21 years of age, he was convicted on two counts of possession of prohibited drugs,[17] for which he received fines. He also received a section 9 bond for larceny.[18]

    (d)In 2005, he was convicted of larceny and sentenced to 3 months imprisonment,[19] and the following month convicted of shoplifting and sentenced to 9 months imprisonment (4 month non-parole period).[20] 

    (e)In 2006, he was convicted of two driving offences: driving with a suspended licence (fined and disqualified for 12 months),[21] and driving an unregistered and uninsured car (fined).[22]

    (f)On 2007, at 24 years of age he was convicted of three counts possession of goods suspected of being stolen (3 months, 5 months, 67 days imprisonment),[23] shoplifting, drive whilst disqualified, and common assault (for which he received a bond).[24]

    [15] Crimes (Sentencing Procedure) Act 1999 (NSW).

    [16] 25 July 2002.

    [17] 22 April 2004, 13 May 2004.

    [18] 25 May 2004.

    [19] 13 July 2005.

    [20] 10 August 2005.

    [21] 31 August 2006

    [22] 16 November 2006.

    [23] Possession of goods suspected of being stolen – 29, 31 January, 22 February 2007.

    [24] 31 January 2007.

21. He received the first of three warnings on 7 November 2007, indicating the possibility that he might have his visa withdrawn if he kept offending.[25]

    [25] G2/123.

    Offending as an adult > 25 years old

22. The police notes for the period suggest that he was feeding an expensive heroin habit.[26] His convictions are primarily shoplifting with two counts of obtaining a financial advantage. He was convicted of seven counts of shoplifting (in 2008,[27] 2009,[28] 2011,[29] and 2013)[30] and received sentences of imprisonment of varying lengths.[31]

    [26] R1C, 11, 12.

    [27] On 25 September 2008, he was convicted on two counts of shoplifting and two counts of obtaining a financial advantage.

    [28] 2 December 2009.

    [29] 23 March 2011.

    [30] 7 March 2013, 6 November 2013.

    [31] In 2008, he was sentenced to 9 months (4 months non-parole); 4 months; and 2 months for obtaining financial advantage; in 2009, he was sentenced to 6 months suspended; in 2011 to 9 months, with a 4 months non-parole period; and in 2013, in respect of 4 counts, he was sentenced to 3 months concurrent. While most of the shoplifting involved high end clothing (Armani suits, designer jeans) his last conviction before the fall in 2020 did not, for example: a tin or smoked oysters and yoghurt valued at $5.29: RC1, 7.

23. He received the second administrative warning on 6 July 2011,[32] and the third on 17 April 2013.[33]

    [32] G2/130.

    [33] G2/136.

    The jurisdictional offence leading to mandatory cancellation

24. After 2013 he made a serious effort to get on top of his drug problem, because he did not reoffend for the next seven years.

25. On 2 December 2020, at the age of 37, he pleaded guilty to a further seven offences arising out of two separate incidents. He was sentenced initially in the Local Court of New South Wales to an aggregate sentence of 20 months with a non-parole period of 12 months. On appeal, the District Court of New South Wales re-sentenced him to a non-parole period of six rather than 12 months, and an aggregate sentence of 12 (as opposed to 20) months imprisonment.[34]

    [34] G2/36-37. The sentence variations are set out in Appendix B.

26. Paragraph 8.1(2) provides that decision-makers should also 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.

    Sub-paragraph 8.1.1 The nature and seriousness of the conduct

27. Sub-paragraph 8.1.1 of the Direction outlines various factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date. In this section I refer to those aspects which I find to be relevant to the present circumstances.

28. I note specifically sub-paragraph 8.1.1(1)(a) which refers to certain types of crimes or conduct that are viewed very seriously by the Australian Government and the Australian community. Decision-makers must have regard to the following:

    a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

    (i)violent and/or sexual crimes;

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

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

29. To the extent that robbery in company and common assault fall under the first paragraph, the applicant has four such offences, three of which were committed as a minor. For the remaining offence (common assault) committed at the age of 24, the matter was disposed of with no penalty imposed, pursuant to s 10A[35].

    [35] Crimes (Sentencing Procedure) Act 1999 (NSW).

1. As to sub-paragraph 8.1.1(1)(b), I note the principle that crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties, are considered by the Australian Government and the Australian community to be serious.

2. This principle extends to police officers in the course of their duties. In 2020 the applicant was convicted of resisting an officer in the execution of their duties. In the course of offering resistance a female officer sustained some injury to her hand and forearm. There was however insufficient evidence of intentional harm to justify a finding of assault. He was heavily under the influence of drugs at the time, to the point of being hospitalised for three days following the incident.

3. As to sub-paragraph 8.1.1(1)(c), I have noted the sentences imposed for the various offences. In particular, he has received a number of prison sentences. These are quantified in the respondent’s Statement of facts, Issues and Contention by reference to the head sentences imposed as amounting to 60 months. The respondent contends:

   The respondent contends that the periods of imprisonment imposed by the various sentencing courts are an objective reflection of the seriousness of the applicant’s offending, noting that the sentencing court had already taken into account the various mitigating factors. [36]

   [36] Paragraph 37-38.

4. I accept that the term of imprisonment imposed (the head sentence) is a good indication of the objective seriousness of the offence. I note that the jurisdiction of the Tribunal is based on the existence of an individual or aggregate sentence of imprisonment of 12 months or more (regardless of whether the sentence is suspended, and regardless of the non-parole period imposed).  Nevertheless, due regard should be had to the actual order made by the court in each case. The Tribunal does not overlook the various mitigating factors to which the court must have regard in tailoring the particular sentence. In the present case there is a significant discrepancy between the time actually served in prison (taking into account suspended sentences and non-parole periods) and the combined total of 60 months found by the respondent by simply totally all the head sentences.

5. As to sub-paragraph 8.1.1(1)(d), the Tribunal is required to consider the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness. I do not think that it would be accurate to describe his offending overall as involving a trend of increasing seriousness. His offending as a young person is arguable worse than his offending in his adult phase, after 25 years of age, which involved primarily shoplifting. The 2020 offending that led to his visa being cancelled occurred after a lengthy period of remission.

6. The Tribunal is required to consider the cumulative effect of repeated offending 8.1.1(1)(e). The Tribunal is required to view the applicant’s conduct in its entirety, and in so doing, evaluate the nature and seriousness of the offending not as a series of discrete events, but as part of a continuum. The cumulative effect on the applicant is of course that he will be exposed to escalating penalties in the criminal justice system; the effect of repeated offending on the general public in this particular case will be to increase concern about the prevalence of domestic violence and property crime. To the extent that the offender is identified in media reports as a non-citizen, the effect of repeated offending is to reduce confidence in governmental policies and ultimately may reduce community acceptance of non-citizens.

7. In terms of sub-paragraph 8.1.1(1)(g), I note that the applicant has been warned on three occasions about his offending and has been made aware, in writing, about the consequences for his migration status of further offending. He has been sent three warning letters, the first dated 7 November 2007,[37] (followed up verbally on 21 December 2007);[38] the second dated 6 July 2011,[39] (acknowledged by him in writing);[40] and the third dated 17 April 2013,[41] for which there does not appear to be a formal acknowledgement of receipt.

   [37] G2/123.

   [38]  Departmental file note: G2/126.

   [39] G2/130.

   [40] G2/132.

   [41] G2/136.

   Sub-paragraph 8.1.2 The risk to the Australian community

8. I turn to consider sub-paragraph 8.1.2 which directs the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   8.1.2. The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

   (1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (emphasis added).

   (2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, 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:

   i)information and evidence on the risk of the noncitizen re-offending; and

   ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …

9. The Tribunal is directed to consider explicitly both the nature of the harm (8.1.2(2)(a)) and the risk of that harm occurring (8.1.2(2)(b)). In assessing the risk relevant information and evidence regarding risk should be considered.

   The nature of harm – sub-para 8.1.2(2)(a)

10. The nature of the harm is identified in the extensive description of the applicant’s criminal record. As noted above, his offending appears to have gone through different phases. Convictions as a young person (2001-2007) span a wide range of offences. As noted above, he was convicted of at least one offence every year between 2001 and 2006 except 2003. He committed minor drug offences, stealing, shoplifting, possession of stolen goods, and trespass. He was convicted of various driving offences, including taking and driving conveyance, and possession of implements to steal, and common assault.[42] His convictions as an adult (2008 – 2013) relate mostly to stealing or shoplifting.

    [42] 31 January 2007.

11. It cannot be said that he has a propensity for violent crime. The two incidents that gave rise to the criminal convictions that resulted in the cancellation of his visa were not on the higher scale of offending.[43]

    [43] National Criminal History Check: G2/28.

12. It appears that from at least 2014, the applicant was listed by Liverpool Local Area Command as part of the Suspect Target Management Plan (STMP). This program is designed to identify, assess, and target individuals suspected of being repeat offenders.[44] The applicant satisfied the requirements for entry because by that point his record was extensive. That program may well have worked, because from 2013 until 2020 there is a seven year hiatus in his offending. He formed a relationship, found employment and helped his mother at home. He appears to have controlled his drug use. But In 2020, after this seven year hiatus, he suffered a major relapse. When the pandemic hit, he started using and selling drugs again.

    [44] See R1C, 6. The STMP was the subject of a recent report by the NSW Bureau of Crime Statistics and Research: see An evaluation of the Suspect Target Management Plan (Revised) >

    His conviction for activity in supplying heroin, for which he was convicted on 5 June 2020, ostensibly involving a small quantity of heroin, which he said was for his personal use. However, according to notes made of an interview conducted on 23 November 2020 for the purposes of a sentencing assessment report (SAR) he admitted that he had decided to start dealing in drugs as a solution to his financial problems.[45]

    [45] NSW Department of Corrections, Windsor Community Correction: R1H.

13. The offence of resisting police resulted in an injury to the police although in mitigation it may be said that there was no intentional infliction of harm, his actions were not premeditated, and when he was seen in the passenger seat of the car, the arresting officer formed the clear view that he under the influence of drugs. He was found with some money in his possession and this gave rise to the offence of dealing with the proceeds of crime.

    The assessment of risk – sub-para 8.1.2(2)(b)

14. The applicant has a long standing drug addiction. His addiction explains most of his criminal offending, including his prolific shoplifting throughout his twenties. He told the Tribunal that at the time of his most recent offending, he was using heroin and methamphetamines together.

    And you were also found to have methamphetamine in your system whilst you were driving; is that correct?---Yes.

    So, you consumed some methamphetamine before you were caught by the police?---Yes.

    Can you explain what the heroin was doing then?  Were you intending to consume - - - ?---For personal use, yes.

    And you were intending to use heroin despite the fact that you've just consumed methamphetamine?---Yes.

    Have you previously used those two drugs together?---Yes.

    Why do you mix these two drugs together?---I don't mix it, I use it one after another.

    Okay.  So, at that time; were you addicted to heroin or methamphetamine?
    

    [46] Transcript, 24 February 2022, 32.

    ---Yes. [46]

15. Statistics provided by the NSW BCS for the years 2017-2019 indicate that 40-42% of offenders sentenced to a term of imprisonment reoffend within the next 12 months.[47] This sobering statistic should be born in mind when considering the prospect of recidivism in any individual case.

    [47] NSW Bureau of Crime Statistics and Research, Re-offending statistics for NSW (

16. The likelihood or recidivism is very difficult to quantify. His prospects for rehabilitation are by no means guaranteed, but given his age and previous attempts, they are probably better than average. He has undertaken various intervention strategies and rehabilitation programs.[48] In 2008, he completed the Magistrates Early Referral into Treatment (MERIT) Program, but reoffended subsequently.[49] In 2020 he self-referred to the program again. He has also completed the High Intensity Program Units (HIPU) at Wellington Correctional Centre, focusing on the development of life skills for short term prisoners.[50]

    [48] G2/57, G2/63.

    [49] Local Court New South Wales, The Magistrates Early Referral into Treatment (MERIT) Program  ( G2/88.

The present proceedings have brought home to the applicant the grave consequences of further reoffending both for him and for his family. It is however not possible to rule out the possibility that the applicant may reoffend. I consider that there is a low to moderate probability that the applicant will engage in further drug use, and that this may lead to further breaches of the law.

CONCLUSION ON PC1

I find that PC1 weighs significantly against revocation of the mandatory cancellation.

Family violence: PC2

There is no evidence of family violence and this consideration has no relevance.

Best interests of minor children in Australia affected by the decision: PC3

Paragraph 8.3(1) of the Direction requires decision-makers to determine whether revocation is in the best interests of a child affected by the decision. This consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made pursuant to paragraph 8.3(2). If there is more than one child affected, the Tribunal must consider the interests of each child individually to the extent that their interests may differ: paragraph 8.3(3).

Paragraph 8.3(4) provides that in considering the best interests of the child, the following factors must be considered where relevant:

the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

b)        the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

c)        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;

d)        the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;

e)        whether there are other persons who already fulfil a parental role in relation to the child;

f)         any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

g)        evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen in any way, whether physically, sexually or mentally;

h)        evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

The applicant’s Statement of Facts, Issues and Contentions identify the following children who may be adversely affected by a decision not to revoke the mandatory cancellation decision.

·Niece, 17 year old;

·Niece, 12 year old;

·Niece, 8 year old;

·Nephew, 5 year old;

·Nephew, 2 year old.

The Tribunal is required to consider the extent to which the applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.

In view of the applicant’s history of drug use, it is not possible to find that this is a factor strongly in his favour. However, there is evidence of a close relationship between the applicant and his 17 year old niece, including the fact that substantial time has been spent together under one roof in his mother’s abode, and there is evidence that he has been very supportive of her especially when she was a young child. On the other hand, this niece is almost 18 and she has other adults in her life who provide parental support.

Nevertheless, I find that this consideration weighs lightly in favour of revocation of the mandatory cancellation.

CONCLUSION ON PC3

PC3 weighs lightly in favour of revocation of the mandatory cancellation.

Expectations of the Australian community: PC4

Paragraph 8.4 provides:

(1)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).

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)causing a person to enter into, or being party to (other than being a victim of), a forced  marriage;

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f) worker exploitation.

(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

Paragraph 5.2(4) of the Direction states:

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 noncitizens 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 noncitizens who have lived in the Australian community for most of their life, or from a very young age.

To some extent the ‘norm’ referred to in paragraph 8.4(1) and the principle articulated in paragraph 5.2(4) pull in opposite directions. The principle of higher tolerance applies to the applicant. He has spent most of his life in Australia. On the other hand, the applicant’s offending commenced not long after he arrived in Australia in 1995.

It is not for the Tribunal to seek to identify the expectations of the Australian community, for these have been identified by the Australian Government and conveyed to the Tribunal in the Direction. It is however a matter for the Tribunal to assign the weight to be given to this factor in the particular circumstances of the case.[51] I consider that while PC4 weighs against the applicant, it does not weigh heavily against him.

[51] FYBR v Minister for Home Affairs [2019] FCAFC 185.

Although the applicant’s criminal record is protracted, it is for the most part relatively low level, does not involve significant violence, and from 2013 until 2020 there is a long period of remission. He told the Tribunal that it was depression that led him back to drugs, rather than financial gain as such. He said that he “got depressed about the situation, started using drugs again and that's what led me down the supply”.[52] The “situation” was his lack of employment as a result of the pandemic, and the difficulty he had in gaining employment outside his family circle.

[52] Transcript, 24 February 2022, 33

1. I have taken into account the conclusion of the Australian Institute of Criminology Report that the impact on the Australian community in terms of lost productivity, health care and drug-attributable crime arising from methamphetamine use, and crystal methamphetamine use in particular, is higher than that arising from the use of other illicit drugs.[53]

   [53] Australian methamphetamine user outcomes, May 2017: R1B.

   CONCLUSION ON PC4

2. I find that PC4 weighs significantly against the applicant, but taking account of his criminal record as a whole, and his addiction, I find that it does not weigh heavily against revocation of the mandatory cancellation.

   OTHER CONSIDERATIONS

3. Paragraph 9.1 of the Direction states that in making a decision under subsection 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

   a)  international non-refoulement obligations;

   b)  extent of impediments if removed;

   c)  impact on victims;

   d)  links to the Australian community, including:

   i.  strength, nature and duration of ties to Australia;

   ii.  impact on Australian business interests

   OC1: international non-refoulement obligations

4. This consideration has no relevance.

   OC2: Extent of impediments if removed

5. Paragraph 9.2 refers to the extent of impediments if removed

   (1)Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)  the non-citizen's age and health;

   b)  whether there are substantial language or cultural barriers; and

   c)any social, medical and/or economic support available to them in that country.

6. I note that the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their ‘home country’.

7. New Zealand is not in any meaningful sense the applicant’s ‘home country’. It is a country with which he is entirely unfamiliar and has no familial ties. He lived in New Zealand for five or six years as a pre-teen child.[54] He has no ties to New Zealand whatsoever.[55] He has no friends or family in New Zealand. He has no recollection of the country.[56] He has not visited that country since he was brought here in 1995. His affiliation with New Zealand goes no further than being granted citizenship there as a refugee before moving to Australia. New Zealand may be his country of citizenship, but it is not, in any normal sense, his ‘home country’.

   [54] G2/74.

   [55] Transcript, 24 February 2022, 17.

   [56] Transcript, 24 February 2022, 17.

8. The respondent’s solicitor contended that the Direction should be applied on the basis that the applicant was a New Zealand citizen.[57] It was not known whether he was a citizen of Vietnam, or whether he had any right of residence there. That possibility had not been raised by the applicant, and the respondent did not consider that it was a matter for the Tribunal to consider.

   [57] Transcript, 25 February 2022, 123.

9. The respondent tendered material provided by New Zealand government sources relating to returning offender legislation. Returning offender legislation provides for ongoing monitoring.  It applies to:

   Anyone who was sentenced to imprisonment for more than a year and who returns to New Zealand within six months of being released from custody overseas. Other people who have been released from custody more than six months ago, but who were still subject to monitoring and supervision in an overseas country prior to their return to New Zealand may also be subject to a Returning Offenders Order.

   If you have been released from prison more than six months ago but were sent straight to a detention centre, you will still be monitored by Community Corrections.

   How long will I have to be supervised in New Zealand on my return? The period of supervision will be based on the length of the sentence you served overseas. The shortest time is six months. 

10. No doubt some ongoing supervision would be a good thing, but it is unclear whether this legislation would apply to the applicant. I note that under the relevant legislation in New Zealand, the basic criteria for imposing a Returning Offenders Order (ROO) is that the person has been sentenced either to a term of imprisonment “of more than 1 year”, or “2 or more terms of imprisonment that are cumulative, the total term of which is more than 1 year…”  Under the relevant sentencing legislation in NSW, a court is required to provide an indicative sentence for each conviction that makes up the aggregate sentence.[58] For the offending in May 2020, the District Court imposed sentences of three, seven and nine months, but these are indicative sentences for the individual offences and are not ‘cumulative’. The NSW District Court imposed an aggregate sentence of 12 months upon the applicant, whereas it appears that the relevant New Zealand legislation requires a sentence of more than 12 months. In the absence of submissions by the parties, I make no firm finding on this issue, but it appears unlikely the applicant will be subject to a ROO on return to New Zealand.[59]

    [58] Crimes (Sentencing Procedure) Act 1999 (NSW) s 53A.

    [59] Returning Offenders (Management and Information) Act 2015 (NZ) s 17.

11. The respondent also provided an information sheet indicating the social welfare support available to returning New Zealand citizens. The information is generic and does not indicate what, if any, support the applicant is likely to receive.

12. In 2008 the applicant contracted hepatitis C.[60] He has a lengthy history of heroin use. It is not implausible that he will suffer ongoing and chronic problems with substance use whether or not he is returned. If returned to New Zealand, his health issues and levels of addiction may be aggravated by social isolation and alienation as a recently arrived foreigner. It is hard to see him being welcomed back as a returning Kiwi.

    [60] G2/62.

13. The impediments that he would face being removed to a country with which he has no cultural or familial affinity weigh heavily in this case. In this context his health problems, including suffering from Hepatitis C and drug addiction, are significant factors.

14. The respondent says that his finance Ms Tugaga has indicated a willingness to go to New Zealand, thus easing any transitional issues he may face. I do not accept this contention.

15. It is by no means clear that Ms Tugaga has the resources to travel to New Zealand, or the mental fortitude to adjust to such a major relocation. She presently lives with the applicant’s mother and is close to her own family. Her relocation to New Zealand would cause suffering to her family in Australia including of course, Mrs Ngo.

16. She was bereft at the thought of relocating to New Zealand. She would be leaving her friends and family and all that she knows to live in a strange country with the applicant. When the moment of truth arrives, she may not be able to do so, no matter how attached she is to the applicant.

17. More importantly, it is hard to say whether her presence in New Zealand would be of assistance to him. He indicated that he would have enormous guilt if she were to give up her life in Australia because of his wrongs. She would be coping with a partner with chronic life challenges. The emotional challenges to be faced in New Zealand would be severe.  The relationship would be under enormous strain and would test the resilience of any couple.

18. I consider that the extent of impediments that he may face if removed from Australia to New Zealand, a country with which he has no affiliation, in establishing himself and maintaining basic living standards (in the context of what is generally available to New Zealand citizens), are likely to be significant.

    CONCLUSION ON OC2

19. I find that this consideration weighs heavily in favour of revoking the mandatory cancellation decision.

    OC3: impact on victims

20. Paragraph 9.3 refers to the impact on victims in the following terms:

    (1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

21. There is no evidence before the Tribunal to the effect that allowing the applicant to remain in Australia would harm or further harm any victim.

    CONCLUSION ON OC3

22. I find that this consideration is neutral and weighs neither for nor against revoking the visa cancellation.

    OC4.1: links to the Australian community, including the strength, nature and duration of ties to Australia

23. Under paragraph 9.4.1(1) the Tribunal is required to consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

24. The applicant has the following relationships in Australia, who are Australian citizens.[61]

    (a)Mother, 63 year old;

    (b)Father, 60 year old;

    (c)Sister, 34 year old;

    (d)Brother, 40 year old;

    (e)Partner, 25 year old.

    [61] Applicant’s Statement of Facts, Issues and Contentions, paragraph 9.

25. Both his mother and his fiancé, Ms Tugaga, gave evidence to the Tribunal.

26. His mother, Mrs Ngo, made a powerful plea to the Tribunal to allow him to remain. She was isolated and needed his help. She begged the Tribunal to let him remain. While her plea as a mother is deeply respected by the Tribunal, it must nevertheless be said that his actions from an early age have been a source of much heart ache for her. She has all too often been required to support him in court. Her mother’s love is boundless, and weighs heavily on the Tribunal. And for a long seven year period she had reason to believe that she had seen the worst of his behaviour. But then he relapsed again.

27. Under paragraph 9.4.1(2), the Direction provides:

    Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.  In doing so, decision-makers must have regard to:

    a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

28. The applicant has spent most of his life in Australia. His immigration movement records were provided to the Tribunal.[62] He first arrived on 8 July 1995 at the age of 12 years old. Since 1995, he has been absent from the country on five occasions, but for relatively short periods of time. On none of these occasions did he visit New Zealand. His most recent absence (for six weeks) was in 2012. He has not left the country since.[63]

    [62] G2/139.

    [63] He departed on 15 November 1997, returning on 14 February 1998 (3 months); on 17 December 2000, returning on 18 March 2001 (3 months); on 4 February 2008, returning on 28 March 2008 (2 months); on 9 December 2009, returning on 3 February 2010 (2 months); and on 18 February 2012, returning on 2 March 2012 (6 weeks): G5/138, 226.

29. I accept that by reason of paragraph 9.4.1(2)(a)(i) less weight should be given to long residence where the non-citizen began offending soon after arriving in Australia.

    CONCLUSION ON OC4.1

30. I find that this consideration weighs heavily in favour of revoking the mandatory cancellation decision.

    OC4.2: impact on Australian business interests

31. The Tribunal is required to consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. I do not consider that this factor (impact on Australian business interests) is relevant.

    RESOLUTION

32. Factors in favour of revoking the visa cancellation:

    ·The best interests of minor children (PC3) (lightly in favour)

    ·Impediment to resettlement (OC2) (heavily in favour);

    ·Links to the Australian community (OC4.1) (heavily in favour);

33. Factors in favour of not revoking the visa cancellation:

    ·Safety of the community (significantly against revocation) (PC1);

    ·Expectations of the community (significantly against revocation) (PC4).

34. Factors that are not relevant:

    ·Family violence (firmly against revocation) (PC2);

    ·Non-refoulement (OC1);

    ·Impact on victims (OC3);

    ·Impact on Australian business interests (OC4.2).

35. Three of the considerations weigh in favour of revoking the decision, and one of them is a primary consideration. Two of the primary considerations weigh against revoking the mandatory cancellation decision. Paragraph 7(2) states that primary considerations should generally be given greater weight than the other considerations.

    CONSIDERATION

36. There is no doubt that the applicant has a bad criminal record. It is the opinion of most of those magistrates and judges who have sentenced him that this is the result of his drug addiction. I respectfully agree with this opinion.

37. I think it may also be said that his drug use was caused, at least in part, by his early childhood experience, which was unstable and unsettling. During these formative years he experienced a loss of cultural identity and the misery of family breakdown. He experienced adjustment and learning difficulties. He was taking drugs including heroin before he dropped out of school in year nine. His criminal record is a powerful testament to the power of addiction to destroy lives.

38. In his Request for Revocation application, in response to an invitation by the Department, he stated:

    I started school in Birrong boys high school, from year 7, and started hanging with the wrong crowd, because i felt more of a family feeling around them and started to get into trouble and also got addicted on drugs. I just kept on getting in trouble due to being addicted on drugs, i never gave up hope of being drug free. I've always had tried different treatments like counselling and merit programs which has worked in the past. But i kept on relapsing, 8 years ago. I started caring about my future because i had nothing and i looked up to my siblings as they are law abiding citizens that are hard working and own their own homes and started a family of their own, also i looked up to my mum and dad as they too are law abiding citizens and are hard working and own their own homes too.[64]

    [64] G2/101.

39. His mother Mrs Ngo, attributes his addiction to the family breakdown.  She states:

    All my life I suffer. My husband leave me for another woman.  (The applicant) until then very good at school, “A” student. But after he become depressed and become unable to cope with divorce. He started to hang out with the bad friend and use drugs and be in trouble with the law. I know he try very hard to stop the drugs but this time he very scared and realise he will lose his whole family. [65]

    [65] G2/99.

40. A conspicuous feature of this case is the long period of seven years as an adult during which he was law-abiding, prior to his arrest in 2020. He said that he started to use drugs again because he was depressed, and this led to selling to get enough money for drugs. It is a plausible explanation for irrational behaviour.

41. I am satisfied that he is not a violent person. Although, he committed a small number of offences that potentially involve physical violence (such as robbery in company or common assault), these were committed a long time ago, either as a juvenile, or as a young person. The offence of obstructing police also involved some non-intentional physical harm, but the evidence points to a state of acute drug intoxication on that occasion.

42. The community has an interest in knowing whether he has any prospect of beating his drug habit. The simple answer is that his prospects for rehabilitation are by no means guaranteed. It is very difficult when dealing with addiction to predict future behaviour. However, there is some evidence that he has benefited from drug rehabilitation programs in the past and may do so in the future. But as the respondent notes, he has reoffended after participating in such programs. I am however reasonably confident that the consequences of his last offending will serve as a powerful deterrent. He has experienced the uncertainty of immigration detention. For those who face deportation from a country they regard as their home, this must be a torment. If he does reoffend he stands to lose everything, not only his liberty and a right to live in Australia as a non-citizen, but quite possibly his fiancé.

43. He has other strong pro-social factors, including his mother and, indeed, his fiancé. He has experienced the impact of his criminal offending on his mother, and in these proceedings the reality that they may lose physical contact with each other for good appears to have made an impact. For if his visa is cancelled he will not be able to return to Australia and it is highly unlikely that his mother will be able to travel to New Zealand. Not only does she have other children and grandchildren in this country, but she has significant health problems, and the cost of maintaining physical contact through regular visits would be considerable.

44. The applicant and his mother have lived in South Western Sydney for almost 27 years, since their first arrival on 8 July 1995.[66] Neither the fact that the applicant has lived in Australia for such a long time, nor the fact that he came here as a young child, prevent his removal from the country as a non-citizen who fails the character test. His long residence and the fact that he was brought here as a child are however powerful factors. The Direction itself recognises the salience of long residence; stating that Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.[67]

    [66] G2/139.

    [67] Direction, paragraph 5.2(4).

45. Finally, I have taken into account the safety and expectations of the Australian community, as articulated by the Australian government in the Direction. Nevertheless, I am satisfied that his links to the Australian community, together with the impediments he would face in establishing and maintaining basic living standards in New Zealand, taking into account his health and especially his past addiction to heroin and methamphetamine, outweigh those considerations.

46. Having considered the mandatory considerations provided for in the Direction, and the various legal authorities cited by the parties, I am positively satisfied that the correct and preferable decision is that the decision not to revoke the mandatory cancellation decision should be set aside. 

    DECISION

47. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate, dated 9 December 2021, to refuse to revoke the Mandatory Visa Cancellation Decision, and in substitution, decides that the cancellation of the Applicant’s TY Subclass 444 Special Category (Temporary) visa is revoked.

109.    I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.................................SGD.......................................

Associate

Dated: 16 March 2022

Date of hearing:	24 and 25 February 2022
Solicitors for the Applicant:	Mr R Ahmadzai, Crystal Migration Legal Services
Solicitors for the Respondent:	Mr A Zhang, Clayton Utz

APPENDIX A: MATERIALS BEFORE THE TRIBUNAL

The parties filed the following materials with the Tribunal:

(a)The applicant’s Statement of Facts, Issues and Contentions, dated 17 February 2022;

(b)Materials provided by the respondent under section 501G of the Migration Act (the ‘G documents’), consisting of 226 pages;

(c)The respondent’s Statement of Facts, Issues and Contentions (SFIC), dated 23 February 2022 including various Annexures, including;

A: Agreed Facts

B: AIC Statistical Bulletin

C: NSW Police Records

D: Various breach of parole reports

E: Sentencing assessment report

F: Pre-sentence report 25 Sept 08

G: Pre-sentence report 10 August 05

H: Interview Notes 23 Nov 20

APPENDIX B – SENTENCING ADJUSTMENT BY DISTRICT COURT IN 2020.

5 June 2020	September 2020	Local court	District Court	Comment
Supply drug (24.02 grams heroin)	16 months	9 months	Substantial reduction
Possess prohibited drug	Convicted No penalty pursuant to s10	Not appealed
Resisting police	3 months	3 months	Sentence confirmed
Dealing proceeds crime ($5,700)	7 months	7 months	Sentence confirmed
Possess unregistered firearm (‘Toy/Nerf gun)	Community correction order (24 months)	Not appealed
Drive vehicle with illicit drug present in blood (first offence)	12 month conditional release order with conviction	Not appealed
Possess drug (1.03 grams)	2 months	S 10A	Sentence varied
Indicative sentence	20 months (12 months non-parole)	12 months (6 months non-parole, expiring on 13 March 2021)	Overall Sentence varied
Other orders	Forfeiture ($5,700) Disqualification (6 months)