HDMN and Minister for Immigration and Border Protection (Migration)

[2017] AATA 3000

HDMN and Minister for Immigration and Border Protection (Migration) [2017] AATA 3000 (13 December 2017)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL                   )

)No: 2017/5728

GENERAL DIVISION  )

Re: HDMN
Applicant

And: Minister for Immigration and Border Protection
Respondent

TRIBUNAL:               Deputy President Bernard J McCabe

DATE:   17 January 2018

PLACE:                     Sydney

IT IS DIRECTED, in accordance with subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, that the text of the decision in this application is to be altered such that:

(a)the reference to “consider” in paragraph [33] of the decision is replaced with “considers” ; and

(b)the term “apparently” is inserted before the phrase “lifeless body” in paragraph [23] of the decision.

.........................[sgd].......................................

Deputy President Bernard J McCabe

Division:GENERAL DIVISION

File Number:           2017/5728

Re:HDMN  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President Bernard J McCabe

Date:13 December 2017

Place:Sydney

1. The reviewable decision, being the decision of the delegate of the Minister for Immigration and Border Protection dated 21 September 2017 not to revoke the cancellation of the applicant’s visa, is set aside.

2. In substitution, the Tribunal decides that the matter be remitted for reconsideration in accordance with these reasons.

   ......................[sgd]..................................................

   Deputy President Bernard J McCabe

   CATCHWORDS

   VISA CANCELLATION – mandatory cancellation – character test – substantial criminal record – primary and other considerations under Ministerial Direction No. 65 – protection of the Australian community – expectations of the Australian community – best interests of minor children – non-refoulement obligations – medical conditions –  threats of retaliation from gang members – decision under review set aside – decision to remit matter for reconsideration

   LEGISLATION

   Migration Act 1958 (Cth), ss 501 & 501CA

   Administrative Appeals Tribunal Act 1975, ss 33(1AA) & 43

   Taxation Administration Act 1953, s 14ZZK

   CASES

   BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96

   SECONDARY MATERIALS

   Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 entitled ‘Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA’, 22 December 2014

   REASONS FOR DECISION

   Deputy President Bernard J McCabe

   13 December 2017

3. HDMN is a citizen of New Zealand who has lived in Australia since 1992. His visa was cancelled on character grounds under the provisions of the Migration Act 1958 (the Act) after he was convicted of offences in 2016. HDMN asked the Minister for Immigration and Border Protection (the Minister) to revoke the cancellation decision under s 501CA(4) of the Act. On 21 September 2017, a delegate of the Minister declined to exercise the discretion to revoke the cancellation decision. HDMN has asked the Tribunal to consider the issue afresh.

4. The applicant does not pass the character test in s 501(6) of the Act. He has been convicted of a number of offences in Australia and New Zealand that attracted terms of imprisonment, including sentences exceeding 12 months in duration. There is no question the cancellation decision was effective. The discretion to revoke the cancellation decision is enlivened.

5. The exercise of the discretionary power to revoke the cancellation decision must be informed by the matters referred to in Ministerial Direction 65 (the Direction). The Direction includes a lengthy preamble which describes some of the values and expectations that underlie the policy in the Direction.

6. Part C of the Direction sets out three primary considerations to which I must have regard. Part C also refers to other considerations which might be relevant although the Direction notes the other considerations will generally carry less weight than the primary considerations.

7. I will address the individual considerations below but first I should recount the background to the decision.

   The applicant’s story

8. HDMN said he had a very difficult childhood in New Zealand. He was the youngest of 14 siblings. His father died when he was young. He said he lived on the streets and had to fend for himself from an early age because his mother was unable to care for him. The applicant said he learned to steal and engage in other criminal activity in order to survive.

9. In the absence of proper role models, HDMN said he fell into bad company. He began to run with a well-known New Zealand gang. The applicant said he was required to engage in criminal behaviour in order to establish his bona fides. He recalled one occasion in particular when he and a number of other prospective members of the gang were directed to break into the home of a police officer. HDMN said the gang was after video tapes that were in the officer’s possession. Apparently the tapes were to be used to blackmail the officer. The applicant retrieved the tapes as directed but became frightened when the officer in question found out he was involved in the robbery and began to pursue him. In his evidence at the hearing, the applicant said he decided to withhold and ultimately destroy the tapes rather than give them to the gang. That led to a rupture with the gang which resulted in threats against his life.

10. There is no direct evidence available of the threats from the gang or the theft from the police officer. It is not wholly surprising that the only evidence is the applicant’s testimony. I will have more to say about that below.

11. HDMN said he decided to flee New Zealand with his then partner Kellie and start a new life in Australia. He pointed out New Zealand was in economic difficulty at the time and Australia offered more jobs and opportunities. He arrived in Australia in 1992 when he was aged 21.

12. The applicant already had a criminal record in New Zealand by the time he decided to emigrate: exhibit one – G-documents, G2 at pp 29-30. He acknowledged in his evidence at the hearing that he decided not to disclose his criminal record to immigration authorities when he landed in this country. The applicant conceded he lied when he filled out the landing card in 1992 because he was desperate to leave New Zealand and did not want to be stopped at the border. Copies of the landing cards are reproduced in exhibit one – G-documents, G2 at pp 150-151.

13. HDMN said he also lied on other occasions when he travelled back and forth between Australia and New Zealand, although he claims that on at least one of those occasions he misunderstood what he was being asked. In particular, he referred to one of those false statements as a ‘white lie’ that he had to tell so he could visit his mother in New Zealand when she was ill.

14. The applicant said he quickly found regular work on the wharves when he and Kellie settled in Australia. But there was a problem: many of his new workmates were involved in drug misuse. He began to use heroin regularly and then methamphetamine. He also smoked marijuana. Once again, he said, he was running with a bad crowd.

15. HDMN said he lasted about 12 months on the wharves. He said he began to experience mental health issues and his relationship with Kellie became unstable as his drug use began to have more of an impact. The Applicant said he moved into and out of the home he shared with Kellie over the next few years. He had difficulty holding down a steady job.

16. During this period, the applicant had encounters with the police. He was charged with assaulting police, resisting arrest and behaving in an offensive manner in 1998: exhibit two – respondent’s bundle of documents at p 200. He was fined in respect of those offences.

17. In 1998, the applicant said he moved to the outer Sydney suburb of Campbelltown. He ran up a drug debt with local dealers who he claims were part of a major organised crime syndicate. HDMN said he was threatened when he could not repay the amount owing. He says he was shot at, and the bullet grazed his head. (He admits he did not report the shooting and there is no corroborating medical evidence before the Tribunal.) He also said his family members were threatened. He said he had no choice but to go to work for the syndicate as a drug distributor in Kings Cross in 1999. He was arrested several months later after he was caught up in a police sting: he sold drugs to undercover policemen: exhibit two – respondent’s bundle of documents at p 201. During this period the applicant was also charged with driving without a licence and giving a false name: exhibit two – respondent’s bundle of documents at p 200.

18. HDMN pleaded guilty to two counts of supplying prohibited drugs. He was sentenced by the District Court on 16 June 2000. Judge Shadbolt noted the elements of the applicant’s childhood history I have already set out but he was unsympathetic: exhibit one – G-documents, G2 at p 105ff. HDMN was sentenced to four years imprisonment on one count and two years imprisonment on the other. Judge Shadbolt added, somewhat gratuitously:

    I recommend to the immigration authorities that at the conclusion of his incarceration he be deported from this country back to New Zealand: exhibit one – G-documents, G2 at p 109.

19. The immigration authorities did not take up Judge Shadbolt’s recommendation at the time. Which is not to say the possibility of visa cancellation was never considered: indeed, the applicant had been warned he was liable to have his visa cancelled in 1995 after false statements on his passenger landing cards came to light. The respondent had considered cancellation at the time but decided to give the applicant another chance. A copy of the notice of decision not to cancel is reproduced in exhibit one – G-documents, G2 at p 120.

20. HDMN was released from prison in 2002. His partner, Kellie, was waiting for him. She was pregnant. It turns out they managed to conceive the child during the course of a supposedly supervised prison visit. Their son was born later that year.

21. The applicant said he had a new lease on life after he was released from prison. He said he found a sense of purpose when he became a foster parent. The Department of Community Services (DOCS) arranged for the applicant and his partner to take in four children who were brothers. HDMN said DOCS was aware of his criminal record but approved him to be a foster parent. Between 2002 and 2007, he said he was a full-time carer. He admitted he used marijuana on an occasional basis during this period. He also had another encounter with the courts when he was convicted of drug possession and driving without a licence in 2004: exhibit one – G-documents, G2 at p 203.

22. HDMN also fathered another child during this period. The mother was a relative of his partner. He said the encounter occurred during a drunken party. The applicant’s daughter joined the applicant’s household although she now lives with the child’s maternal grandmother, who has custody.

23. The applicant said he re-entered the workforce in 2007 when he became a liaison officer with an indigenous body. He said he left the workforce in 2011 when his partner had a heart attack. He became her full-time carer. HDMN said he did not know his partner had also been diagnosed with a brain tumour. He said she began to exhibit erratic behaviour and kicked him out of the family home. The applicant said he was devastated by the rejection and responded with heavy drug use. He also commenced a relationship with another woman, Tammy, who he says was also a drug user.

24. After leaving the family home, HDMN says he continued to support his former partner and the rest of the household which included their son and the foster children. In particular, he said the Housing Commission home was rented in his name and he paid the rent.

25. The applicant’s former partner, Kellie, died in 2013. The applicant said he found her lifeless body early one morning when he visited the family home. She died in his arms and he claims he continues to experience flashbacks from that agonising event.

26. The applicant said the death of his former partner led to further decompensation and drug use. The applicant said he moved back into the family home to take care of the household during this period. Tammy was a regular visitor but he claimed she was often affected by drugs and her behaviour was erratic. They had a turbulent relationship. There were many arguments and aggressive interactions. Tammy obtained an Apprehended Violence Order (AVO) against the applicant. The final order was made on 28 October 2014. A copy of the order is reproduced in exhibit two at p 268.

27. 2015 began badly for the applicant. He was convicted of contravening the terms of the AVO, two counts of assault and two counts of stalking: exhibit two – respondent’s bundle of documents at pp 206-7. He was sentenced to gaol. He served four months. A relative looked after the children while he was imprisoned although his daughter moved in with her mother. He was also convicted of two charges of possessing a prohibited drug and was convicted – yet again – of driving whilst unlicensed on 9 March 2015: exhibit two – respondent’s bundle of documents at p 211. He was fined and placed on a bond.

28. Another AVO was obtained against the applicant and another relative living at the house in August 2015: exhibit two – respondent’s bundle of documents at 272ff. The second AVO required that the applicant and the relative limit contact with a number of children, including the applicant’s daughter who had moved in with her mother and visited her father on weekends. The applicant said he was not the target of that AVO: he claims it was directed at the relative who was living in the house at the time and he was only caught up incidentally.

29. The Applicant’s legal problems continued. On 24 August 2015, the applicant was convicted yet again of driving whist disqualified: exhibit two – respondent’s bundle of documents at p 209. He was also convicted of driving a vehicle with an illicit drug present. (I note the national police certificate indicates the conviction was quashed:  exhibit one – G-documents, G2 at pp 25-28.) On 1 March 2016, the applicant was again convicted on two charges of driving while disqualified and two charges of possessing dangerous drugs: exhibit two – respondent’s bundle of documents at pp 211-2.

30. The turbulent relationship between Tammy and the applicant continued, as did their drug use. The applicant was arrested after an encounter between them in February 2016. On 8 April 2016, he was convicted on two counts of common assault and of breaching the AVO: exhibit two – respondent’s bundle of documents at pp 212-3. He was sentenced to 16 months in prison on the most serious charge.

31. HDMN agrees he used drugs on occasion during his various stints in prison. He failed urine tests on at least one occasion: exhibit one – G-documents, G2 at p 114. He said he managed to get clean during the most recent stretch which ended when he was transferred into immigration detention – although he conceded he had used heroin on one occasion early in 2017 once he was on Christmas Island. The applicant said he is being treated for his various health conditions, including his mental health condition: his depression is in remission and he is generally compliant with his treatment regime, he said. He claimed he wants to participate in a drug program that would help him stay clean but laments the fact he has not been given that opportunity. He said he now understands the terrible costs associated with his drug misuse although Mr Eskerie, the representative for the respondent, noted the applicant had expressed remorse before.

32. The applicant says his children need him in Australia. His son is now 15 and he has recently been in trouble with the law. The applicant says he needs to provide parental guidance for his son during this delicate time. His son currently resides with the foster children who previously lived with the applicant. The foster children are now all adults and they are providing a home to the applicant’s son. His daughter continues to reside with her maternal grandmother.

33. None of the applicant’s family members provided any evidence for the purposes of these proceedings apart from the applicant’s son, who wrote an email that was provided to the respondent: exhibit one – G-documents, G2 at pp 153-4.

34. The applicant said he is fearful of returning to New Zealand because he believes gang members will make good on threats to kill him for failing to follow orders in 1992. He said another gang member who is in immigration detained on Christmas Island recently warned him that he was still a target. Mr Eskerie says there is reason to doubt the veracity of this claim: it is undocumented, although that is not surprising. Mr Eskerie points out the applicant has returned to New Zealand to visit his family on several occasions. The applicant said he was nervous when he did so.

    Challenges in fact-finding

35. The Tribunal’s court-like processes are designed to gather and test evidence in a rigorous way. By the end of a hearing, the Tribunal usually knows a good deal more about the subject matter of the decision under review than the original decision-maker. That is certainly true in most of the visa cancellation and revocation decisions under s 501CA of the Act. In those cases, the Tribunal member ordinarily hears first-hand from the applicant and other witnesses and consider a wider range of documentary evidence than was before the primary decision-maker.

36. The Tribunal has a range of powers to assist its fact-gathering processes – most obviously the summons powers in the Administrative Appeals Tribunal Act 1975 (the AAT Act) which allow it to require the production of documents and compel the attendance of witnesses. The General Division of the Tribunal still depends on the parties to drive the fact-gathering process themselves. Both parties have the opportunity to call or summons relevant evidence, including (in most cases) evidence that was not before the original decision-maker.

37. While the Tribunal is not in the habit of saying a party has an onus of proof (other than in exceptional cases, like those covered by s 14ZZK of the Taxation Administration Act 1953), an applicant is generally expected to help himself by leading evidence in support of whatever argument he wishes to make. But the government decision-maker or agency is not entitled to be passive while all this goes on. The decision-maker is expected to act as a model litigant.

38. The obligations of a model litigant are well-known. Yet the model litigant policy is not an exhaustive statement of a decision-maker’s obligations, at least in Tribunal proceedings. Section 33(1AA) of the AAT Act also refers to the decision-maker’s obligation to “use his or her best endeavours to assist the Tribunal to make its decision in relation to the proceeding”. The precise content of that duty varies with the circumstances of the decision under review.

39. The decision-maker in a visa cancellation and revocation review might have special obligations where an applicant is in immigration detention. The decision-maker has a measure of control over how much freedom the applicant has to prepare his or her case, especially when the applicant is unrepresented, under-educated, unwell or indigent. The decision-maker may be obliged to take more active steps to help the Tribunal get to the bottom of an applicant’s case if it is obvious the applicant is floundering in his attempts to present relevant evidence to the Tribunal.

40. The applicant in this case did not have the benefit of legal representation. He did not submit any material in support of his case. The only documents before me were provided by the respondent or produced under summons from relevant agencies, such as the police. The applicant appeared in person at the hearing to tell his story and make submissions. He was the only witness called. Some of the documents provided by the respondent referred to matters that were obviously relevant to these proceedings, even if the detail was sometimes limited. (For example, the record of the Detention Client Interview dated 22 December 2016 refers to the applicant’s depression and drug addiction issues: exhibit one – G-documents, G2 at pp 169 and 174.) That evidence is obviously relevant to the first primary consideration under the Direction because the applicant’s drug abuse and mental health issues are linked, and because information about the state of the applicant’s mental health was likely to be relevant to my assessment of the risk of re-offending. The document also briefly mentioned the applicant’s concerns over the threat of retaliation at the hands of the gang if he were returned to New Zealand: exhibit one – G-documents, G2 at p 179. That information was potentially important to a claim that Australia’s non-refoullement obligations were engaged.

1. It became apparent that those matters might be an issue when I conducted a case management directions hearing on 6 October 2017. It was obvious to me at that early stage – and it should have been obvious to the respondent – that the applicant was going to have difficulty providing the information I would need to properly evaluate his claims. I indicated to the respondent’s representative that I expected the respondent would take steps to obtain evidence about gang activity in New Zealand that might provide context against which I could evaluate the applicant’s claims that he feared reprisals. I also indicated I expected the respondent would obtain expert evidence that would assist me in evaluating his mental health condition so I could form a clearer view of the likelihood of reoffending. I pointed out at the time that the applicant would have difficulty obtaining an independent medical report while he was in immigration detention on Christmas Island.

2. Unfortunately, the respondent declined to provide me with the assistance I requested. The respondent tendered clinical notes from the applicant’s treating doctors, but there was no independent medical report or expert opinion to guide me. I was also told the respondent was unable to provide any evidence about gang activity in New Zealand. That is surprising: the respondent has provided expert evidence on this topic in other cases where claims of this nature have been made.

3. The respondent’s reluctance to assist makes my job harder. Ultimately, I must consider whether I am satisfied on the material before me that the cancellation decision should be revoked. If there are obvious gaps in the evidence, I might conclude the decision should be set aside and remitted so the parties – most obviously the respondent – can obtain further information that I judge is necessary to reach the correct or preferable decision.

4. Evidence like reports from authoritative sources and independent expert opinions do not just inform. They also help the Tribunal to avoid the pitfalls of idiosyncratic decision-making. Tribunal members strive to be objective. They want to refer to objective evidence to explain and justify their decisions. At a minimum, that sort of evidence helps to counter the misimpression that Tribunal decision-makers are giving effect to personal or political agendas, or acting on a whim. I note the Direction prioritises objective evidence from independent experts in preference to evidence provided by family members. And so it should: a preference for objective evidence promotes the integrity and credibility of the decision-making process.

5. In the circumstances, the best course is for me to discuss the evidence and make such findings of fact as I can while I address each of the considerations referred to in the Direction.

   The primary considerations

6. The first primary consideration is the protection of the Australian community. Clause 13.1 of the Direction says this consideration requires me to reach a view on two matters:

   (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.

   I will deal with each limb in turn.

7. The applicant has a lengthy criminal record. His offending in New Zealand commenced when he was a juvenile. He was already a convicted felon who had served time in prison when he came to Australia as a young man in 1992. The applicant’s criminal record in New Zealand included shoplifting and other forms of theft and a traffic offence but ranged to more serious offences when he was an adult including assaults, robberies and at least one drug charge: see New Zealand police record reproduced in exhibit one – G-documents at G2, p 29. 

8. I have already discussed the applicant’s offending in Australia. The details are set out in the national police certificate which is reproduced in exhibit one – G-documents G2, at pp 25-28. The applicant’s criminal record in Australia includes crimes of violence, which are regarded as being particularly serious. The applicant’s partner, Tammy, was the victim of some of that offending; she is probably regarded as a vulnerable person given the applicant knew she was suffering from mental health and addiction issues.

9. The sentences imposed for the various crimes indicate the applicant’s behaviour ranged from less serious to moderately serious. The applicant has been sentenced to shorter terms of imprisonment, for the most part, although he has been sentenced to multi-year terms of imprisonment on several occasions. I note Judge Shadbolt’s took it upon himself to recommend that the applicant be deported after serving the sentence imposed following the drug convictions in 2000: exhibit one – G-documents, G2 at p 109. Magistrate Degnan was obviously more confident that the applicant might rehabilitate himself after the applicant was convicted of possession and driving whilst disqualified on 1 March 2016. While his Honour imposed terms of imprisonment of eight months in respect of two of the offences, his Honour suggested:

   There are prospects which are quite positive for rehabilitation. He does appear to be genuine in his desire to reform and I note as a family man, as a widower, he needs to be there for his two young children: exhibit one – G-documents, G2 at p 104.

10. I have already noted the applicant has a lengthy criminal record. While he was able to avoid serious encounters with the criminal justice system in the period between 2002 and 2011, his offending appeared to track the level of drug misuse which varied over time. His offending has not clearly become more serious over time, but he has tended to repeat the same conduct – most obviously driving without a licence. He has also offended while under punishment for earlier offences, and his record of complying with bail and parole obligations is mixed: see, for example, the probation and parole service supplementary report of breach of good behaviour bond reproduced in exhibit 2 – respondent’s bundle of documents at pp 745-6.

11. The applicant has provided false or misleading information to the Minister’s department when he completed passenger landing cards on several occasions. That is significant because our migration laws require the cooperation of persons entering Australia. I note the applicant was warned by immigration authorities that he was at risk of having his visa cancelled in 1995 after one example of a false statement was uncovered; the applicant went on to repeat that same offence. If there was any doubt in the applicant’s mind about the prospect of being deported should he engage in further offending, that doubt should have been dispelled when Judge Shadbolt all but ordered the applicant should be removed from the country after completing his sentence. I also note the applicant has been the subject of disciplinary action whilst in immigration detention: see exhibit two - respondent’s bundle of documents at pp 182-192.

12. The applicant’s criminal offending is serious, most obviously because it includes crimes of violence and intimidation. But it is also persistent. That makes his behaviour a matter of real concern.

13. The nature and frequency of the applicant’s offending obviously poses a challenge when I consider the risk to the Australian community should he engage in further offending or other serious conduct. It appears the applicant’s offending is at least partly driven by substance abuse. It is likely his substance abuse is in turn driven by his mental health conditions. (Of course, his addiction may itself be a mental health condition.) In those circumstances, it stands to reason that the risk of him re-offending may be impacted by the success of his mental health treatment regime – although I acknowledge it will be affected by other factors, including the company he is likely to keep upon release into the Australian community. He gave evidence that he anticipates returning to the family home and he wants to resume his relationship with his partner. That is problematic since his partner appears to have her own mental health and addiction issues.

14. I have already mentioned I was provided with copies of the applicant’s health records. Those records confirm the applicant suffers from major depression along with a range of other medical conditions, including Hepatitis C, hypertension and a respiratory condition: see, for example, exhibit two - respondent’s bundle of documents at p 23. It appears the applicant is currently compliant with his medication. It is probably no accident that he is more confident of his ability to avoid returning to drug misuse now that his mental health issues are being addressed.

15. I had hoped for expert assistance in interpreting the applicant’s medical records. An expert could have provided an opinion on the applicant’s prognosis with respect to mental health and addiction issues. Such an opinion would have allowed me to make a more precise assessment of the likelihood of him reoffending.

16. Mr Eskerie argued it ultimately did not matter whether I was satisfied the applicant had a high, moderate or low prospect of re-offending. He said the seriousness of the applicant’s conduct was such that the applicant was likely to pose an unacceptable risk of harm.

17. On balance, doing the best I can with the material before the Tribunal, I accept that is so. The applicant’s offending is not at the most serious end of the scale, but it is serious and has been persistent. There is certainly evidence that the applicant has not been deterred by punishment in the past, the potential impact on his family or the prospect of deportation. He has not been able to stay away from illicit substances for long periods. Given he is a long-term abuser of dangerous drugs, there must be a real prospect of further offending. Even if I take the most favourable view of the medical evidence and concluded there is a low risk of re-offending because I was confident he had the measure of his mental health challenges, the likely consequences if he does offend are still significant. It follows the first primary consideration weighs against the applicant, although I hesitate to conclude it weighs heavily against the exercise of the discretion in circumstances where I do not have access to all the evidence that should have been available.

18. I turn next to the best interests of minor children in Australia that will be affected by the decision. I have already explained the applicant has two minor children: his son, whose mother Kellie has died; and his daughter who currently resides with her maternal grandparent. He also has a large number of nieces, nephews and cousins in Australia, at least some of whom are minors: exhibit one – G-documents, G2 at p 133. He also referred to relationships he has with the minor children of his former foster children. I should say at once that the relationships with his own two children are of the most relevance since he does not have a parental relationship with the other children. The Direction makes clear that parental relationships are at the heart of this primary consideration:  cl 13.2(4)(a) of the Direction.

19. The son is 15 years of age. He is still at school. The applicant said his son was doing well enough academically but he experiences teasing. He has spent some time in detention as a juvenile after he got into trouble with the law but the applicant says he believes his son is on the right path now. The applicant told me his son is a promising footballer: he plays club sport on the weekend and may go on to compete at a higher level. His living situation is, according to the applicant, stable. I was told the applicant’s adult foster children are looking after the applicant’s son.

20. The applicant says he wants to be there for his son. He wants to be a role model and give his son the benefit of his own experience, and to help the boy avoid the mistakes that the applicant has made.

21. I note there are some concerns about the applicant’s past performance as a parent. His history of drug use is a problem, and his turbulent relationship with his current partner, also gives pause. (I note the applicant says he expects he will resume his relationship with his partner who has been visiting him in gaol and while he is in immigration detention.) There is also evidence in the form of an AVO order taken out with respect to his daughter and her step siblings that suggests the applicant was frequently absent from the home and that he routinely left the children in the care of a relative who may not have dealt with the children appropriately: see exhibit two – respondent’s bundle of documents at pp 272-7.

22. I accept there is value to a relationship between the applicant and his son. If the applicant were to stay in Australia and remain clean, he may play a positive role in his son’s life. If the applicant is removed from Australia, his son’s life might be disrupted. He has already lost one parent, after all. But it is difficult to say more than that given the state of the evidence. I was provided with an email said to be from the applicant’s son, but Mr Eskerie questioned whether the applicant was the author of the communication given obvious similarities between the applicant’s writing style and the style of the email in his son’s name. There is no direct evidence of the son’s current living situation apart from the oral evidence of the applicant. The applicant may not be in a position to know what is happening given he is in detention. I note based on the evidence before the Tribunal the former foster children do not have custody or any formal legal responsibility for the boy’s welfare.

23. The paucity of evidence about the applicant’s daughter is even more alarming. I was told the adult with whom she lives has custody, but I am not aware that anybody has taken steps to confirm the detail of her living arrangements, much less establish her attitude towards her father and her current circumstances. Her father suggested in evidence that he expected his daughter would accompany him to New Zealand should he be required to return there, but it may not be that easy if she is in the custody of somebody else. I would add that his evidence in this regard is difficult to square with the fact an AVO was taken out against him on behalf of his daughter, albeit that he says the AVO was really directed at a relative who shared the house.

24. I am uncomfortable evaluating the best interests of the children when there is so little reliable evidence available in relation to their current circumstances and their individual relationships with their father. Ideally, that evidence should have been provided by the applicant but it has not been forthcoming. Inevitably, the burden of obtaining some of that evidence must fall on the respondent.

25. I am not satisfied I have sufficient evidence before me to reach a proper view on whether this primary consideration counts for or against the applicant having regard to the matters referred to cl 13.2(4) of the Direction.

26. The third primary consideration is the expectations of the Australian community. I should say at once that this primary consideration is unlikely to count in the applicant’s favour. I take into account the fact the applicant has made a positive contribution to the community as a foster parent. I also take into account the fact he has been present in Australia over a long period, has family ties here and that he has experienced personal tragedy (the death of his partner, albeit that the death occurred comparatively recently and long after the pattern of offending became established) and a difficult upbringing. But I cannot ignore the lengthy criminal record, the seriousness of the offending and the fact he has been warned about the risk of deportation if he continued to engage in criminal conduct.

27. The applicant has already been given a second chance. That occurred in 1995 when the respondent informed the applicant his visa would not be cancelled on that occasion but further offending might cause the respondent to reconsider. The remarks of Judge Shadbolt in 2000 should also have brought home to the applicant the fact he was trying the patience of the Australian community. But he kept offending. He is effectively asking for a third or fourth chance. I note he also denied the Australian community the opportunity to consider whether or not he should be allowed to come to Australia in the first place when he made false statements about his criminal record on his landing card. Australians are less likely to be tolerant of those who obtain entry under false pretences.

28. The Direction clearly articulates the community’s expectation that non-citizens should obey the law if they are given the privilege of coming to this country. Australians are not hard-hearted: modern Australia was at least partly built off the back of individuals in search of a second (or third, or fourth) chance in a land at the end of the world. Yet that tolerance and goodwill has limits.

29. I am confident this consideration would count against the applicant. I should add that my assessment of the precise weight of this primary consideration is potentially affected by some of the evidence about the applicant’s familial relationships. The community’s attitude towards a struggling father trying to face up to his familial responsibilities might be different to its attitude towards someone who was less involved with his family than the applicant would have me believe.

    Other considerations

30. It should be apparent from my discussion of the evidence that I am not in a position to properly weigh the primary considerations. It seems to me the only proper course is to remit the matter to the decision-maker for further consideration pursuant to s 43 of the AAT Act. But I would add similar concerns over the paucity of evidence also arise in relation to some of the other considerations.

31. There was a good deal of discussion at the hearing in relation to international non-refoulement obligations. This is a fraught issue. In the recent past, the respondent has taken the view that these claims were best dealt with in the protection visa process. Mr Eskerie acknowledged a recent decision of the Full Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 has modified the respondent’s position somewhat but I was told I should take comfort from the fact the applicant retained the option of applying for a protection visa. Mr Eskerie made that submission in response to questions from me about the paucity of evidence from the applicant concerning his fear of reprisals from the gang, and after I noted the reluctance of the respondent to make its own enquiries.

32. Even if one accepts the protection visa process is well-adapted to the task of assessing claims of this nature, a decision-maker in the General Division in these proceedings would still expect a basic level of information to be provided in relation to these claims. Ordinarily, the Tribunal would look to the applicant to provide that information but there may be circumstances where it is incumbent on the respondent to provide some evidence of the kind I have described (e.g. a country information report prepared by the Department of Foreign Affairs and Trade, an expert opinion on gang activity, or an International Treaties Obligation Assessment). That information is necessary so I can assess how far I should go in dealing with this consideration. It may be that evidence of this kind would confirm the applicant’s fears are exaggerated or misplaced.

33. I accept there is no basis for being satisfied there would be any impact on Australian business interests if the applicant were to be removed from this country. I also accept there is no clear evidence of a victim being impacted if the applicant stays or leaves. (The only victim referred to in the evidence was the applicant’s partner, and it is unclear whether she favours the applicant staying or leaving.) These matters do not count for or against the exercise of the discretion to revoke.

1. There are questions about the strength and nature of ties to Australia that would be easier to answer if there was additional evidence. At present, the best that can be said is that the applicant has been present in Australia since he was a young adult and that his children and extended family reside here. Many of the applicant’s family (including his children) are Australian citizens and I expect his children in particular will be upset if he were required to leave. But the closeness and strength of those relationships is unclear. There is also some doubt over the nature of his relationship with his partner.

2. I note the applicant began offending reasonably soon after he arrived in this country – indeed, his offending began as he entered the country when he made false statements on the passenger landing card. I note the limited evidence before me suggests the applicant made a positive contribution to the country when he worked as a foster parent between 2002 and 2011, but there is limited evidence to suggest the applicant was otherwise making a significant contribution.

3. I accept there are some impediments to the applicant being removed. His emotional well-being will be seriously affected. In the absence of a support network, there is an increased risk of him falling into bad old ways. I note he has some siblings and extended family remaining in New Zealand, but it is unclear how close those relationships are: the applicant points out his siblings are all older than him and some of them are at an age where they require the support of their own families. If the applicant is genuinely in fear of his life, he may be unable to return to familiar surroundings. I note the applicant experiences a number of health conditions but there is no reason to doubt he will be able to obtain treatment in New Zealand. I also note there are few, if any, language or cultural barriers. This consideration counts in favour of the exercise of the discretion, but not heavily.

   Conclusion

4. I am not in a position to complete the balancing exercise required in the Direction. Additional information is required. While it is open to me to conclude the applicant has had his chance and should accept responsibility for the way in which he presented his case, I do not think that course would be fair to his children whose interests must be considered. The applicant should provide additional evidence about the children and other aspects of his claim where I have identified shortcomings in the evidence. But the respondent also has responsibilities in the circumstances of this case. I made clear to the respondent’s representatives from the outset of these proceedings that more may be required of them in relation to two matters in particular where the applicant was unlikely to be in a position to provide relevant evidence. The respondent will now have the opportunity to take up that invitation. The respondent should also make its own enquiries with respect to the children if information is not forthcoming from the Applicant.

5. The decision under review is set aside. I decide in substitution that the decision must be remitted to the decision-maker for reconsideration in accordance with these reasons.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President Bernard J McCabe.

........................[sgd]................................................

Associate

Dated: 13 December 2017

Date of hearing:	13 November 2017
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers