Hiko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 3117

Hiko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3117 (24 August 2020)
Division:GENERAL DIVISION
File Number(s): 2020/3422
Re:Quentin Hiko
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:24 August 2020
Place:Brisbane

The decision under review is affirmed.
..........................[SGD]..............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special category (temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500; [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
R v Daniels [2007] NTCCA 9
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
24 August 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 38 year old citizen of New Zealand who has lived in Australia for the majority of his life.
In January 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special category (temporary) visa (“the visa”) under
[1] Exhibit G1, s 501 G-documents, G2, page 9.
s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[1]
In February 2019 the Applicant made representations as to why the decision should be revoked. On 28 May 2020, the Respondent decided not to revoke the cancellation.[2]
[2] Ibid, G19, page 104.
On 5 June 2020, the Applicant lodged an application for review. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 12 and 13 August 2020. The Applicant gave evidence by video conference and his ex-wife gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[3]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[4]
[3] [2018] FCAFC 151.
[4] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[5]
[5] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In November 2018, the Applicant was sentenced to two years imprisonment with a non-parole period of 15 months. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” as defined under s 501(7)(c) and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[6]
[6] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C of the Direction provides for the decision-maker to take into account “Primary Considerations”[7] and “Other considerations”.[8]
[7] The Direction, paragraph 13.
[8] The Direction, paragraph 14.
The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[9]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[10]
[9] [2018] FCA 594.
[10] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant first came to Australia in 1985 at the age of three. A year later he returned to New Zealand. In 1988, when he was six years old, he relocated to Australia permanently.[11]
[11] Exhibit G1, s 501 G-documents, G16, page 95.
The Applicant started smoking cannabis when he was 15 years old. He stated he smoked it “pretty much every day”.[12] Between 1997 and July 2000, the Applicant committed numerous offences, including multiple criminal damage offences, “intentionally or recklessly cause injury”, “assault police/person assisting police”, “resist police or person assisting police”, theft and burglary. He told the Tribunal that the criminal damage charges related to graffiti. He said “I got into graffiti through my sister, she used to write – she used to do tags and stuff like that when I was at school and I kind of used to hang out with her and her friends.”[13] Some of the offences were committed when the Applicant was a minor.
[12] Transcript, page 18.
[13] Transcript, page 17, lines 23 to 25.
The Applicant was given the benefit of non-custodial orders in the form of good behaviour bonds, fines and a community service order. He breached the community service order. He explained his early offending as arising from his mother having given him too much freedom.[14] In July 2000, when he was 18 years old, his mother sent him to New Zealand to live with his father in an effort to straighten him out.[15] He lived in New Zealand with his father and step-mother until October 2004 when he returned to Australia. While in New Zealand he committed one offence, being drink-driving.[16]
[14] Transcript, page 21, lines 13 to 16.
[15] Transcript, page 22, lines 5 to 11.
[16] Exhibit R2, Respondent’s Bundle of Additional Documents, page 6.
After returning to Australia, the Applicant got married and had a son. His son was born in early 2006. Initially, he and his family lived in Melbourne, before relocating to Darwin.
The criminal history before me does not indicate the dates when offences were committed, only the dates when the Applicant was convicted.[17] His first conviction after returning to Australia in 2004 (that did not relate to offences committed before he left) was in April 2006. Accordingly, it appears that he commenced re-offending relatively quickly after returning to Australia, and soon after becoming a father.
[17] Exhibit G1, s 501 G-documents, G3, pages 30 to 33.
In 2006 and 2007, the Applicant was convicted of five offences relating to graffiti and one offence of possessing cannabis which he says arose from the police finding cannabis when he “got raided for graffiti”.[18] He was fined and also put on a wholly suspended one month sentence of imprisonment. He breached that and was ordered to serve the time in prison. This was his first custodial sentence.
[18] Transcript, page 24, line 20.
In 2009, the Applicant was convicted of drink driving and driving the wrong way down a one-way street. He told the Tribunal he knew he was over the limit and that he drove down that street in an effort to avoid detection.[19] At this time he was living in Darwin.
[19] Transcript, page 29.
In 2010 he took a can of spray paint from a child who was sniffing it and used it to graffiti.[20] He was convicted of “unlawfully damage property”.
[20] Transcript page 29, lines 32 to 35.
Between 2011 and 2014, the Applicant was convicted of driving a motor vehicle while unlicensed on seven occasions.
In August 2014, he was convicted of supplying a commercial quantity of cannabis. He had been sending associates into remote Aboriginal communities to supply cannabis within those communities. When asked how he become involved in that activity he said:
“Well, I used to buy ounces – I used to – my mate used to sell ounces to me for 400 and I used to, like, make $50 on each one. And then one time I was at the pub after work and this countryman asked me where I can buy some cannabis from. And he goes, “My cousin’s come from Port Keats, he’s got $7000,” and goes, “He wants to buy some.” So I thought straight away, well, I can help you out. And then he told me that you can make $5000 an ounce. And I didn’t believe him and he goes, “Well, you give me one. So I gave him one. Two days later he paid me back $5000 and that’s how it kind of started from there.[21]
[21] Transcript, page 31, lines 23 to 33.
In passing sentence, the learned Judge made the following remarks:
“Mr Hiko, you have pleaded guilty to the offence of having supplied a commercial quantity of cannabis to various people. The amount supplied was 1.726 kilograms. The maximum penalty for the offence is imprisonment for 14 years.
The agreed facts advise me that on 2 November 2013, members of the Northern Territory Police Force commenced an operation targeting you. The operation involved interception of telecommunications services used by yourself, as well as physical surveillance.
The surveillance continued for a period through to 28 January 2014, a period of approximately three months. During that period, you were involved in the purchase, supply and distribution of cannabis in Darwin. In many cases, the cannabis was to be supplied on your behalf to people in Aboriginal communities in the Northern Territory, including Groote Eylandt, Wadeye and Galiwinku.
You were heard by police to engage in hundreds of telephone calls involving the supply of cannabis to Aboriginal people, where the clear intent was for the on-supply into Aboriginal communities. You were responsible for numerous traffickable quantities of cannabis being taken into such communities for sale.
The total amount of cannabis supplied by you during this period is not known but was well in excess of the commercial quantity. Police intercepted 1.25 kilograms of cannabis during the operation. A further 475 grams was identified through telephone intercepts and other surveillances as having been supplied by you... The profit made [by you] is not known and you have not provided any information in that regard. However, it was a significant amount.
I am told that cannabis can be sold for a very wide range of remuneration, from $30-$200 per 1 gram bag in the communities. The telephone intercepts indicated that you were receiving profits measured in thousands of dollars and on a regular basis. I accept what is put to me on your behalf that you also lost substantial amounts of money through not being paid for the cannabis that you supplied.
During the course of the submissions, I was provided with specific instances of the offending to give me a flavour of what it was that you were doing during this period. The telephone calls that were intercepted indicated that this was an ongoing business between yourself and various people who conducted the supply for you.”[22]
[22] Exhibit G1, s 501 G-documents, G7, page 50.
His Honour then recounted several specific instances where the Applicant supplied persons with cannabis to take into remote Aboriginal communities. For example:
“On 2 November 2013, you made an arrangement with [name redacted] to supply him with cannabis for the purpose of it being supplied to various people in Groote Eylandt. On that day, you and [name redacted] met at an address in Palmerston and you gave him 91.64 grams of cannabis. Later that night, [name redacted] was intercepted at the Darwin airport preparing to board a plane to Groote Eylandt and the cannabis was recovered from his luggage.
You knew that he resided in Groote Eylandt and that the cannabis was headed for that location. You knew that it was to be supplied to other people in the community. I am advised that the potential yield from the sale of that cannabis is in the range of $2700 to $18,000. You told the police in your record of interview that at Groote Eylandt you could sell half a gram of cannabis for $400 but that different amounts applied to different locations.”[23]
[23] Ibid, pages 50 to 51
His Honour noted that the Applicant had declined to assist the police to identify other persons involved in the supply of cannabis into the Northern Territory. He went on to say:
“The fact that your offending involved engaging in the provision of drugs destined for Aboriginal communities makes the offending significantly more serious. I adopt the remarks of the Court of Criminal Appeal in R v Daniels [2007] NTCCA 9, without repeating them.
General deterrence is obviously a significant consideration in this case. The damage done by such offending to people in Aboriginal communities is well-recognised. It is discussed in detail in the case of Daniels to which I have referred. People who offend in this way must be alerted to the fact that serious consequences will follow detection.
Section 37 of the Misuse of Drugs Act applies to your offending. There is a presumption that you intended to supply the dangerous drug for commercial gain. You have not sought to establish otherwise and I proceed on the basis that the presumption applies. This was a commercial operation….
There are further aggravating circumstances in relation to the offending, beyond the fact that it was for supply to Aboriginal communities, and you knew that was to take place. Your offending was prolonged and only stopped when you were arrested after a significant Northern Territory Police operation. You involve others in the offending. It was through recruitment of Aboriginal associates that you obtained access to people within the Aboriginal communities where a good deal more could be made from the sale of drugs than in the wider community. You involved in numerous co-offenders in your enterprise.
There is no suggestion that anyone other than yourself was responsible for your involvement in the offending. This was not a case of you needing drugs to supply your own requirements. This was a cold, hard commercial enterprise entered into by you and operated by you over a period of time. You were a principal offender.”[24]
[Underlining added]
[24] Exhibit G1, s 501 G-documents, G7, page 54.

The learned sentencing Judge found that although the Applicant claimed to have been under some financial pressure at the time of the offending, greed was the significant reason for his offending. His Honour noted that the Applicant had three biological children who lived with him (and one who did not) and three step-children living with him and his partner. He accepted that the Applicant was the sole financial provider for his partner, the six children, and that his incarceration would cause them financial hardship. Even so, he considered the offending so serious that it warranted a period of actual imprisonment, as opposed to home-detention or a suspended sentence which had been put forward on behalf of the Applicant. He sentenced the Applicant to two years imprisonment with a non-parole period of 12 months.
The Applicant told the Tribunal that he had been supplying cannabis in this way for “a couple of years…on and off” before he was caught.[25] This is a much longer period than the three months that was before the sentencing court. The Applicant agreed that he had committed the offences out of greed[26] and he told the Tribunal that he had a gambling problem at the time and he spent a lot of the proceeds of his drug dealing on poker machines.[27] He said sometimes he had a “punt” on the horses but 99% of his gambling was on poker machines.[28] He said he had enough money to feed and clothe his family and he spent the extra money on poker machines.[29] There is a report from Community Corrections dated in December 2019 which notes the Applicant reporting a gambling problem.[30] I accept that the Applicant had a gambling problem at the time of this offending and that he spent much of the proceeds of his drug dealing on poker machines.
[25] Transcript page 31, line 45; page 32, line 10.
[26] Transcript, page 32, lines 24 to 33.
[27] Transcript, page 32, line 47; pages 33 to 35.
[28] Transcript, page 33 lines 11 to 12.
[29] Transcript, page 35, lines 9 to 46.
[30] Exhibit R2, Respondent’s Bundle of Additional Documents, page 52.
In December 2014, the Applicant was convicted of some other offences that had been committed before his incarceration. They were damage to property, drive a motor vehicle while unlicensed, aggravated assault and engage in conduct that contravenes a domestic violence order. He was sentenced to seven days imprisonment for the aggravated assault and fined for the remaining offences. With respect to the aggravated assault, according to a prosecution Statement of Facts:
“At about 10:15pm… the Applicant returned to his residence… after consuming several beers. [He] had left his residence approximately 2 days prior and had not informed his partner… of his intention to be absent for that period of time.
When [he] entered the house, [his partner] woke up and approached him in the lounge room about where he had been. This turned into a verbal argument which was witnessed by the couple’s children.
After a few minutes of verbally abusing one another, [his partner] walked away and went into the bathroom. [The Applicant] turned and said to his stepdaughter…‘Your mum doesn’t know how to control herself, I’m going to give her a hiding to settle her down’.
[The stepdaughter] fearing for her mother’s well-being, grabbed [the Applicant’s] mobile phone and went into her bedroom to call Police. [The Applicant’s partner] exited the bathroom and walked back into the lounge room asking [the Applicant] where he had been.
[The Applicant] punched [his partner] twice to the left side of the face striking her in the eye causing pain and bruising. The echoes of the punches were heard by [his stepdaughter] while she was in her room on the phone to Police.
[The Applicant] grabbed [his partner] by the hair and began to punch in the face, causing [another of her children] to scream in fear for her mother…
While speaking with [the Applicant’s partner] [the police] observed that as a result of the assault she had bruising under her left eye, swelling to her forehead and several lumps on the back of her head where the skin was quite red. Further, there were several scratches on the back of her neck.
While police were talking with the victim [the child who had called police] made it quite clear that she wanted [the Applicant] taken from the house begging ‘don’t leave him here, please don’t leave him here’.”[31]
[31] Exhibit R2, Respondent’s Bundle of Additional Documents, , pages 197 to 198.
Also before me is a statutory declaration from one of the police officers who attended this incident.[32] He said the Applicant had stated he and his partner were “blind drunk” and were having a heated argument. He said that the majority of the children in the house were crying. He said that the Applicant had alleged that his partner had hit him multiple times and that he had hit her in self-defence.
[32] Ibid, pages 200 to 201.
These documents were put to the Applicant and he did not dispute the contents of any of them. I accept that they are an accurate record of the offending, and I note that his conviction is not consistent with him having acted in self-defence and I do not accept that he did.
In relation to the offence of “conduct that contravenes a domestic violence order”, there is a Prosecution Brief[33] before me that alleges that on 30 May 2014 the Applicant was served with a Domestic Violence Order (“DVO”), and that on 27 July 2014, in an intoxicated state, the Applicant argued with his partner, threw a cigarette lighter at her and they both started pushing and shoving each other in front of their small children, resulting in his partner sustaining a cut to her lip. This conduct breached the DVO in relation to the Applicant’s partner and two of their children. The Applicant did not dispute any of this, and I accept that it happened as described.
[33] Exhibit R2, Respondent’s Bundle of Additional Documents R2, page 209.
In July 2015, the Respondent mandatorily cancelled the visa under

s 501(3A) of the Act on the basis that he did not pass the character test and he was serving a full-time custodial sentence.
The Applicant subsequently made representations as to why that cancellation should be revoked (“revocation request”) and provided a letter of support from his partner. The revocation request included the following:
“I was convicted of a minor offence, I accept my behaviour was so wrong and was devastating for the entire family which I am so ashamed of. But in my favour, I am taken steps to turn it all behind me, I have not re-offended and there will be no involvement any further of criminal offending. I am not a member of any criminal organisations or groups. I do not show a continuous pattern of criminal behaviour. There is nothing to indicate that I will be involved in any further criminal offending.”[34]
[Errors in original]
[34]Ibid, page 258.
The letter from the Applicant’s partner focused on the financial hardship she said she has suffered due to the Applicant’s incarceration and the stress it has caused her. She also said that the Applicant was not at risk of reoffending as he had learned his lesson and that he planned to go back to church and focus on building a better life for their family.[35]
[35]Ibid, page 260.
On 2 December 2015, the visa cancellation was revoked, and the notice of that revocation contained the following warning:[36]
Please note: this decision does not mean that you cannot be reconsidered again on character grounds in the event of further criminal offending by you.
[36] Exhibit G1, s 501 G-documents, G18, page 101.
The Applicant signed an acknowledgement of having received the notice on 2 December 2015.[37] He did not claim that he had not understood this warning.
[37] Ibid, page 103.
In April 2017, the Applicant re-offended by, again, supplying a commercial quantity of cannabis that was intended to be sold in a remote Aboriginal community. According to the Police Statement of Facts, the Applicant had met with an associate at a tavern and taken the associate back to his home. There the Applicant’s partner had given the associate four packets containing cannabis and some “empty deal bags”. [38] The associate was subsequently caught with the drugs at the airport. The Applicant’s partner was also charged with this offence; however, she was not ultimately prosecuted. The Applicant said that he “wore that”.[39]
[38] Exhibit R2, Respondent’s Bundle of Additional Documents, R2, page 212.
[39] Transcript, page 105, lines 3 to 6.
The Applicant told the Tribunal that this second drugs offending was:
“Just to get some free smokos so I didn’t have to spend food money and what not (sic), I would help people out from time to time, but the deal was they just give me a bit of a cut out of it themselves
…
if I got an ounce for someone, they would give me a couple of grams for myself to smoke. But not in the side of making money.”[40]
[40] Transcript, page 75, lines 14 to 31.
Accordingly, although the Applicant was convicted in relation to only one instance of supplying cannabis, by his own admission, he had been involved in several transactions.
Between this offending and his conviction for it, the Applicant was convicted of driving while unlicensed, unregistered and uninsured, speeding and drink-driving.
The Applicant was convicted of the drugs offence in November 2018. He was initially sentenced to two years imprisonment to be served by way of home detention. In passing sentence, the learned sentencing Judge said:
“It was agreed between the parties that on or about 20 April 2017 your co-offender came into possession of a commercial quantity of cannabis contained in four separate packages. Your co-offender attended at the Darwin airport early on the morning of 21 April 2017. It was agreed that you dropped him at the airport on that morning. He was booked on a flight to Alyangula.
A drug detection dog gave a conditioned response to his baggage, the baggage was searched and the cannabis was found, together with 700 small empty clip-seal bags. The collective weight of the cannabis was 602.17 grams.
Your fingerprint was found on the outside of one of the packages containing the cannabis. Your residence was subsequently searched and your fingerprints were also found on a Tupperware container holding 27.57 grams of cannabis, scales and clip-seal bags, and on the clip-seal bag in which the 25.57 grams was stored.
So they were the matters that were agreed.
So far as the contested facts are concerned, I am satisfied that you provided the cannabis to your co-offender, that you entered into an arrangement with him for him to transport the cannabis to Alyangula and sell the cannabis there, and that arrangement involved with the return of some of the proceeds from those sales to you.
I am unable to find precisely how much you were to receive from those sales, beyond the fact that it was some not insubstantial commercial reward. During the contested facts hearing I rejected your account that your return for facilitating your co-offenders possession of the cannabis was to be a small quantity of that cannabis.
…
I do not accept that this is a plea of guilty at an early stage. However, you did indicate an intention to plead guilty in advance of the trial, subject to the determination of the contested facts… However, I do not really see any objective evidence of remorse for your conduct, and my assessment of the evidence that you gave during [the] course of contested facts hearing is such that I am not really convinced that you deserve any leniency on the basis that you have fully accepted responsibility for your conduct…
The objective seriousness of this offence is of a relatively high level. You involved yourself in the supply of a commercial quantity of cannabis destined for an Aboriginal community. The manner in which you arranged that supply involved, I have to say, a fair degree of cunning which was directed to obscuring your involvement in the enterprise. The potential profits were significant given the inflated price for which cannabis cells in Aboriginal communities, which is no doubt why you involve yourself in that sort of enterprise.
Your conduct formed part of a chain or a system of serious criminal activity involving the intended distribution of drugs. The nature and location of the intended destination in this case is also significant for another reason, not just in relation to the profits that are available. This court has frequently made comment concerning the corrosive effect of cannabis misuse in Aboriginal communities…
… There is no doubt that you would be going directly into actual prison this morning for this offending but for the fact that you and your partner have the joint care and custody of eight children, and your financial contribution to that household through gainful employment is essential to the well-being of those children.”[41]
[41] Exhibit G1, s 501 G-documents, G5, pages 40 to 42.
The Judge ordered home detention so the Applicant could continue to work and provide for his family. He asked the Applicant if he understood the terms of the home detention, which included that he could only leave his home for periods prescribed or permitted by a probation and parole officer. The Applicant said he understood. A matter of days later the Applicant breached the terms of his home detention by taking two unauthorised trips. He was re-sentenced to serve his prison sentence in prison, with the learned sentencing Judge commenting that he was satisfied that the breaches were committed to facilitate the Applicant’s involvement with cannabis “in some general sense”.[42] His Honour further said that:
“This court can really have little confidence that your behaviour is going to change… You have demonstrated a contumelious and breathtaking disregard for the conditions imposed by the court on the order for home detention, and a breathtaking disregard for the purpose for which that order was made.[43]
[42] Ibid, G4, page 36.
[43] Ibid, page 37.
His Honour set a non-parole period of 15 months. The Applicant admitted to the Tribunal that these trips involved him sourcing cannabis for his friends.[44]
[44] Transcript, page 81, lines 7 to 17.
The Applicant has a history of domestic conflict and violence, going back as far as his marriage to his ex-wife. He told the Tribunal that he and his ex-wife would sometimes argue and that they would push and shove each other. He said sometimes “drinking would set it off”.[45] There is before me a report from the Northern Territory Police recording an incident that occurred on 22 November 2008 in which the Applicant, in an intoxicated state, took money from his (then) wife’s purse after she had told him she would not give him any money, and as she attempted to stop him a struggle ensued. The Applicant slammed the bedroom door, catching her left middle finger causing her finger to break and be partly severed.[46] The Applicant’s (then) wife did not wish to press charges, and it appears that the Applicant was not charged. In the hearing the Applicant conceded that the police report was accurate.
[45] Transcript, page 28 lines 14 to 15.
[46] Exhibit R2, Respondent’s Bundle of Additional Documents, page 75.
There are several other reports from the Northern Territory Police of domestic violence or domestic disturbances between the Applicant and his current partner. One report records that on 2 December 2010 the Applicant’s partner struck him in the groin and he then punched her in the face about three times.[47] The Applicant denied having hit her on that occasion but admitted that he had hit her on other occasions.[48] There is a report from 2013 of the Applicant’s sister fighting with his partner (who was intoxicated at the time), both having been egged on by the Applicant.[49] The Applicant admitted to this. The Applicant’s partner’s daughter from a previous relationship[50], who lived with the Applicant and his partner, called the police on that occasion. There are some other reports of children of the Applicant’s partner[51] calling the police because of arguments and physical conflicts between her and the Applicant.
[47] Exhibit R2, Respondent’s Bundle of Additional Documents, page 84 to 85.
[48] Transcript, page 53, lines 37 to 41.
[49] Exhibit R2, Respondent’s Bundle of Additional Documents, pages 103 to 106.
[50] Who is now an adult.
[51] Who are now adults.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant has committed various kinds of offences, including damage to property (graffiti), theft and dishonesty offences, assaults, driving offences, breaches of bail, and drug dealing. His history of offending spans 20 years and he has been before the courts on some 21 occasions with respect to in excess of 80 offences.
As the Direction states, violent crimes, and crimes of a violent nature against women or children are viewed very seriously. The Applicant has committed a number of violent offences. One was committed against a female in front of minor children. At least one of those children was so frightened she called the police and asked for the Applicant to be removed from the home. I am satisfied that the Applicant was violent towards a female partner on other occasions that did not give rise to convictions. This is serious conduct and therefore relevant to this Primary Consideration. I accept that on some of those occasions the Applicant’s partner was intoxicated and aggressive towards him. However, aside from actions taken in self-defence, domestic violence is unacceptable whether provoked or not. Further, the children who were traumatised by the Applicant’s violent conduct did nothing to provoke it. His violent and aggressive behaviour was in complete disregard of their wellbeing.

Another violent offence was committed against police or a person assisting police. Although the details are not before the Tribunal and that offence is dated, assaulting a police officer in the execution of their duty or a person who is assisting police is an attack on the criminal justice system and shows disrespect for the lawful authority that governs the community. The breaches of bail undertakings similarly indicate disrespect for the criminal justice system.
The most serious of the Applicant’s offending is the offending arising from his drug dealing. The learned sentencing Judge found that, in relation to the first offence, the Applicant was motivated by greed and noted that the Applicant chose to send cannabis into remote Aboriginal communities because it could be sold for inflated prices. He described the offending as a “cold, hard commercial enterprise” that had been entered into and operated by the Applicant.[52] His Honour found that it was an aggravating factor that the cannabis was destined for Aboriginal communities, referring to the case of R v Daniels [2007] NTCCA 9.[53] The Respondent, in its Statement of Facts, Issues and Contentions, has helpfully extracted the passages in Daniels that speak to the seriousness of this type of conduct[54], and those passages are as follows (per Martin CJ and Riley J):
[52] Exhibit G1, s 501 G-documents, G7, page 51.
[53] In which the offender was convicted of possession of cannabis and the sentencing Judge found that the cannabis was intended for sale in an Aboriginal community.
[54] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions paragraph 34.
[35] The use of cannabis in remote Aboriginal communities is part of a widespread problem arising out of substance abuse of many kinds in those communities. The substance most commonly abused is alcohol, but cannabis and other drugs have a significant impact.
[36] The recently published report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse included a finding that (161):
“... alcohol and other drugs are having a massive negative impact on the social fabric of Aboriginal communities and contribute greatly to family and cultural breakdown. ...”
[37] The report went on to note that extreme alcohol abuse has become normal in Aboriginal communities in the Northern Territory and the devastating effects of such abuse are rapidly increasing. Similar observations apply to the use of cannabis. As with alcohol, it seems that the use and abuse of cannabis has become a way of life for many Aboriginal people. The effect is to contribute significantly to the severe dysfunction found in many communities and within families in those communities. The negative effects of the consumption of cannabis not only impact upon the individuals immediately concerned, but upon the community as a whole.
[38] Research referred to in the report identified a number of individual “community harms” linked to the abuse of cannabis. The identified harms reflect the experience of the Court. Those harms include increased suicide and self-harm, friction and disputes stemming from users seeking money for drug use, young people making demands for money to purchase cannabis and threatening violence or self-harm if money is withheld and a negative impact on participation by users in work, school, sports, culture and other aspects of community life. Cannabis use has led to mental health problems and to the compounding of harms associated with excessive drinking, kava consumption and inhalant abuse.
[39] The price paid for cannabis (substantially greater in remote communities than in Darwin) means there is a reduced amount of money available to purchase food and other necessities. The report identified child neglect as a recurring issue in households where one or more of the occupants divert money for cannabis use or other addictions. It is readily apparent that substantial amounts of money are being taken from communities by way of payment for cannabis, resulting in money that would otherwise be spent for the benefit of members of the community being lost to the community. In the present case the appellant sought to introduce into the relatively small community of Ngukurr a substantial quantity of cannabis in June 2006 and was returning with 1.232 kilograms of cannabis in October 2006. Had he been successful the potential for an overwhelmingly negative impact upon the community in financial terms and, indeed, in all aspects of community life, was obvious.
[40] It is clear that users of cannabis, non-users of cannabis and the children of users of cannabis are all victims of the illegal trade. The abuse of cannabis continues to cause tremendous damage within Aboriginal communities. It leads to misery and dysfunction within those communities.
[41] Courts in the Northern Territory have for some time been expressing increasing concern as to the consequences of offending of this kind. Research conducted by the Northern Territory Department of Health and Community Services supports the view that cannabis is in widespread use in remote communities and the use is increasing. A snapshot of cannabis use undertaken in April 2002 by the Department revealed an increase in use and identified cannabis use in males as young as 10. Use of cannabis in the Arnhem region of the Northern Territory, where this matter arose, was described as increasing at an “alarming rate”.
[42] It is plain that the problem must be addressed by the wider community and by diverse strategies. It is not a problem which will be resolved within the criminal justice system alone. Insofar as the courts of the Northern Territory are concerned it is apparent that the sentences that have been imposed in the past have failed to provide an adequate deterrent and have failed to stem the flow of cannabis into such communities. Commercial drug offending within Aboriginal communities has remained far too prevalent. As we have said it is time for penalties to be increased in order to reflect the need for greater general deterrence. Those who engage in drug offending related to Aboriginal communities, particularly commercial drug activities, are on notice that in future longer terms of imprisonment will be imposed.
[Underlining added]
While the Applicant denied having been aware of the harm caused by cannabis consumption in Aboriginal (and other) communities at the time of the offences[55], it is objectively serious conduct. This is reinforced by the sentences, and the non-parole periods, that were imposed for both offences. I note that the learned Judge who sentenced the Applicant for the second drug offence made it abundantly clear that home detention was only ordered to allow the Applicant to continue to provide for his family. When the Applicant breached the conditions of his home detention, he was ordered to serve his sentence in prison. Courts normally impose imprisonment as a measure of last resort in the sentencing hierarchy and both learned sentencing Judges observed that the offending was so serious it warranted terms of imprisonment.
[55] Addressed in more detail in paragraph 72.
The Applicant is a frequent offender who has not been deterred from offending by intervention from the police or the courts or the previous cancellation of his visa. The seriousness of his offending has increased over time when one considers that the aggravated assault offence and the more serious drug supply offence occurred in 2014, with his offending having commenced in 1997. While the second offence of supplying cannabis was less serious, the circumstances in which he committed it, having once been imprisoned for the same conduct and having undertaken to the Respondent that he would not re-offend, were very serious. When the first cancellation of the Applicant’s visa was revoked, the Applicant was warned in writing that he could be considered again on character grounds if he re-offended, and he went on to re-offend.
I do not consider factors (g) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances, so they do not require consideration.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the reviewable decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The Nature of the Harm to Individuals or the Australian Community were the Applicant to Engage in Further Criminal or other Serious Conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. I will focus on the Applicant’s more serious offending.
The nature of the harm were the Applicant to engage in the further supply of cannabis to Aboriginal communities is set out in the extracted passages from Daniels above. Such harm is multifaceted and widespread. It affects vulnerable communities, being communities that are already struggling with substance abuse problems, and it affects vulnerable individuals, being children. It is extremely serious harm.
The harm from continued domestic violence includes physical and psychological harm to the adult victim and emotional trauma to children who are present. The psychological harm can be long-term for the victim and the children of the victim.
The Applicant has committed three drink driving offences and it is trite to say that driving while under the influence of alcohol increases the risk of harm to other road users and pedestrians. Such harm can include serious and permanent disability or death.
The Likelihood of the Non-Citizen Engaging in Further Criminal or Other Serious Conduct
As I have observed, the Applicant continued to re-offend after his first substantial period of imprisonment in 2014 and 2015. After his visa was cancelled in 2015, he made representations to the Respondent that he would not re-offend. He did re-offend in 2017 by committing various offences including drink-driving, speeding, driving unlicensed, unregistered and uninsured, and supplying a commercial quantity of cannabis. Even after being sentenced to two years of imprisonment in November 2018 for the supply of cannabis offence and being given the benefit of home detention because of his family’s circumstances, he almost immediately breached the conditions of his home detention in order to supply cannabis to other persons. Up to that point, he was a persistent offender, impervious to intervention.
In February 2019, in response to his visa having been cancelled for the second time, he wrote to the Respondent:
“I belive (sic) my offending this time is on a lesser level. My first drug offending was for gane (sic) of money, and this offending was only for telling a friend were (sic) where he could buy it from as you will read in the police reports. I have been around weed all my life. It’s like it’s become a normal thing. I smoked it, my workmate’s (sic) smoke it, my family smokes it. Not to say my actions are acceptable. I am ashamed that my actions have brought me back to start line again but please take into account it is lesser addictive and lower on the scale of drugs that damage the Australian community. And I no longer wont (sic) to (sic) back to being a marijuana smoker.”[56]
[Underlining added]
and:
“Honestly their wont be anymore offending. Im not saying this to try and worm my way out of this. But this time I have givin my heart to Jesus while in jail. It’s like I have been walking this life blind and a true change in my heart and thinking has been made new. In away I am thankfull for coming to jail. You probly heard a few stories in your time but please accept my mine.[57]
[Errors in original]
[56] Exhibit G1, s 501 G-documents, G9, page 73.
[57] Ibid.
In these passages the Applicant appears to downplay the extent and seriousness of his offending. By his own admission, his offending was for financial gain. Further, he knew from his own experience[58] the addictive power of cannabis. In the hearing the Applicant was asked if he realised, at the time of the supply offences, that cannabis consumption could affect a person’s ability to function, keep a job and look after their children. He said he had not realised until he was teaching inmates to read and write during his most recent period in prison.[59] He did admit that he knew that people in Aboriginal communities were using money from government pensions to buy cannabis which left less to spend on other things.[60] He said:
“I didn’t really see the serious nature of it when I started being a tutor in prison, I didn’t see how much damage I was really doing. So I don’t – I’ve got a different way of looking at it now. I just thought it was something that people just do to relax and stuff like that but I know there’s more to it now, like people getting schizophrenia and whatnot (sic)…And taking – taking food off the table of people, you know, when the money should be going to kids and stuff.”[61]
[58] Transcript, page 75, lines 24 to 26.
[59] Transcript, page 42, lines 27 to 28.
[60] Transcript, pages 42 and 43.
[61] Transcript, page 40, lines 25 to 30.
Since being incarcerated, the Applicant has done a 30 hour “Safe, Sober, Strong Program”.[62] He said he wanted to do more rehabilitative courses but was unable to, and I accept this. He told the Tribunal that he has renewed his relationship with Jesus. He had previously said in his revocation request:
“I hope you will please accept that my time in police custody has change me into a better person. Giving my heart to Jesus has showen me who I am suppose to be and were my life is going. I no longer desire to return back to my old ways…”[63]
[Errors in original]
[62] Exhibit G1, s 501 G-documents, G10, 78–79;
[63] Exhibit G1, s 501 G-documents, G9, page 76.
Based on his responses to questions about his relationship with Jesus and his knowledge of the bible, I am satisfied that the Applicant’s claims about his faith are genuine. The Applicant claimed to have a different outlook now. He said he disapproves of the way he used to behave, that he has grown as a man and he is positive and confident about his future. He said he has not consumed drugs or gambled while in prison or immigration detention. There is no evidence to the contrary and I accept his evidence, although I note that the Applicant was addicted to poker machines and there is nothing like that available in prison. I also note that the Applicant has not undertaken any courses or counselling targeting his gambling addiction.
I found the Applicant to be candid and genuine in his evidence. For example, when a police report of him spitting at his partner was put to him, he said he could not recall that instance but that he and his partner did spit at each other sometimes when they were fighting. He then hung his head and said that behaviour was “not cool”.[64] I am inclined to accept that the Applicant does have some insight into his offending, that he feels remorse, that he has a positive and confident outlook, and that he wants to look after his family and abstain from offending. The Applicant said intends to get involved in a Church fellowship if he is returned to the wider community, and he expressed a willingness to proactively seek support. I accept that his intentions are genuine. However, his commitment to those activities and goals has not been tested in an unstructured environment. Neither has his ability to manage his behaviour in circumstances where gambling, alcohol and drugs are more readily available.
[64] Transcript, page 67, line 41.
There is a strong association between the Applicant’s consumption of alcohol and physical conflict with his partner. The Applicant told the Tribunal that he is not an alcoholic, but he sometimes drinks alcohol. He said from time to time he does “crave a beer”.[65] He described it as a small concern rather than a big concern.[66] When asked if his partner’s drinking would affect his efforts to abstain from drinking, he said:
“I think that’s a really bad mixture, us too coming together. Or just stay focused, work, I really see how much my children mean now, so really getting them into their sport is what I really liked when I was coming up, I was a gifted sportsman but I had no one to really nurture that, you know. So – and I know my children have a natural flare in sports, I can see it in them, and I would like to put my energy there, mainly into my children and working hard, really.”[67]
[65] Transcript, page 76, line 35.
[66] Transcript, page 78, line 9.
[67] Transcript, page 77, lines 26 to 34.
Based on the Applicant’s evidence, I am concerned that the Applicant has unresolved issues with alcohol, and that being with his partner could well impede his efforts to abstain from abusing alcohol.
The Applicant gave evidence that he had been addicted to cannabis but had not smoked it for “a couple of years”[68]. He said after around six months in prison (the most recent period of incarceration) he did not have the urge for it.[69] He said:
“Oh yes, because the desire’s not in me anymore, I don’t have that – like that spirt (sic) that used to have a hold of me you know. I feel like I’m burden free from it.”[70]
[68] Transcript, page 26, lines 43 to 46.
[69] Transcript, page 75 lines 41 to 43.
[70] Transcript, page 77, lines 42 to 45.
I accept that the Applicant has not used cannabis since November 2018 when he was most recently incarcerated. However, he has used cannabis since he was 15 years old in the wider community, he gave evidence that many of the people around him, being his friends and his partner’s family, use cannabis, and his ability to abstain in such an environment has not been tested.
The Applicant considers that his only problem now is gambling, particularly poker machines.[71] He spent a lot of the money he made supplying cannabis on poker machines. He said he first started gambling in 2005 and it got bad a couple of years after his son was born (which was in 2006).[72] His gambling problem is therefore long-standing. He said:
“I’m still trying to get help and get answers about that because I still get urges from time to time. But I really want to knock this on the head because it’s been a real – it’s really had a bad hold on me a long time.”[73]
[71] Transcript, page 80, lines 20 to 22.
[72] Transcript, page 33, lines 31 to 44.
[73] Transcript, page 33, 27 to 29.
It is apparent that the Applicant’s gambling problem is unresolved.
The Applicant completed an apprenticeship as a painter when he lived in New Zealand between 2000 and 2004. He has declared employment in Australia from 2006 to 2018 as a subcontractor, doing painting and decorating work. There is a letter before me from a friend of the Applicant who married into his partner’s family.[74] He said the Applicant is known for his good work ethic and the high standard of his work. The Applicant told the Tribunal that he has work lined up but that he wants to:
...take to the end of the year off just to bond with my children and get my place looking in order and then I’m going to start off afresh if I get a chance to go back on the new year to kick off again…”[75]
[74] Exhibit G1, s 501 G-documents, G15, pages 92 to 93.
[75] Transcript, page 94, lines 21 to 25.

I am satisfied that if the Applicant is returned to the wider Australian community, he would be able to secure employment as a painter and decorator after his planned period of staying home and bonding with his children. However, employment has not previously stopped the Applicant from offending, so I do not regard employment as a strong protective factor. Further, I do not regard the Applicant’s partner as a protective factor. Her preparedness to abuse alcohol can only undermine the Applicant’s efforts to stay sober. The Applicant’s partner knew he was dealing cannabis and, while according to him she hated him doing it and tried to get him to stop[76], he continued to do it. He also gambled while he was employed and lived with his family.
[76] Transcript, page 74, lines 3 to 10.
There is no independent expert evidence before me about the risk of the Applicant re-offending. Based on the evidence that is before me, even though I accept that the Applicant wishes to be law-abiding, I am not confident that he will be able to manage his issues with alcohol, cannabis and gambling so that he does not re-offend. Nor has he demonstrated a pro-social, as opposed to a pro-criminal, attitude for any extended period outside of custody since in recent years. I find that there is at least a moderate risk that he will re-offend including by supplying drugs within the community and/or committing domestic violence offences.
The Applicant stopped his graffiti activities some years ago and channelled them into making art lawfully. I do not consider that there is a risk that the Applicant will engage in more offences arising from graffiti, such as trespass and criminal damage.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·any known views of the child.
The Applicant has a biological son with his ex-wife. That child, Child A, is 14 years old and lives with his mother and her partner. Child A’s mother gave evidence and she impressed as a reliable witness. She said that following her divorce from the Applicant he remained involved in Child A’s life and that they have maintained a strong bond. She said she and the Applicant always had a close co-parenting relationship. Around five years ago she and Child A relocated to Melbourne. Child A would fly to Darwin to stay with the Applicant for holidays and he spent six months living with the Applicant around two years ago. The Applicant and Child A communicate regularly through letters and phone calls. However, it has been “a number of years” since they have been in the same location.[77] Child A does well at school and has never been in trouble with the police. He has a good relationship with his mother’s current partner. Child A’s mother said she thinks Child A misses the Applicant and she has sought some counselling for him in that regard. She thinks the Applicant’s deportation would make it harder for Child A to spend time with the Applicant as it would be a further trip and international travel is challenging at present.[78] The Applicant described his relationship with Child A as “so close… more like a brother to brother relationship”.[79] He said the last time he had seen Child A was in 2018 before he was incarcerated, and that he speaks with Child A on the telephone and via FaceTime.[80]
[77] Transcript, page 100, line 30.
[78] Transcript, pages 100 to 101.
[79] Exhibit G1, s 501 G-documents, G9, page 69.
[80] Transcript, page 89 lines 15 to 18.
I am satisfied that the Applicant has a positive and loving relationship with Child A, although he has been physically absent from Child A’s life for most of the last five years. I am satisfied that Child A misses the Applicant and that it would be harder for him to visit the Applicant in New Zealand, although his ability to keep in touch with Child A by telephone or electronic means would not change significantly. Child A’s mother fulfils the parental role, and there is no suggestion that, if the Applicant were returned to the wider community, he would be Child A’s primary carer or that he would even live in the same city as Child A. Further, visits would likely be infrequent – as they have been thus far. I find that revocation of the visa cancellation would be in Child A’s best interest but to a very limited extent.
The Applicant has a minor step-daughter, Child B, who is 14 years old. He also has the following biological children with his partner:
·Child C, who is 10 years old;
·Child D, who is nine years old;
·Child E, who is eight years old;
·Child F, who is five years old;
·Child G, who is three years old;
·Child H, who is two years old; and
·Child I, who is one year old.
The Applicant has been incarcerated for half of Child G’s life, most of Child H’s life and all of child I’s life. In addition, has spent significant periods absent from Children B, C, D, E and F.
I accept that when he is not incarcerated, the Applicant lives with his partner and these children, and he provides for them financially. I have no doubt that he loves them. However, he has engaged in aggressive behaviour with his partner in front of some of the children, which is clearly not in their best interests. In relation to the aggravated assault in 2014 the police reported that most of the children in the home were crying. According to a Community Corrections report, there is a DVO against the Applicant that expires on 24 November 2020.[81] The Applicant’s partner currently fulfils the parental role in relation to the children and there is no suggestion that she will not continue to do so. I am satisfied that if the Applicant were permitted to remain in Australia he would live with his partner and the children if permitted by the terms of the current DVO, that he would fulfil a parental role in relation to them, and that he would generally be a positive factor in their lives.
[81] Exhibit R2, Respondent’s Bundle of Additional Documents, page 51.
The Applicant gave evidence that if he had to return to New Zealand, his partner and children would also relocate to New Zealand.[82] He said:
“Like if I’m to – if I don’t get my visa back I’ll move back, set up house and then they’ll eventually come over but it’s just going to take a long time for passports My wife’s only on Centrelink, you know, it’s just going to take a while.”[83]
[82] Transcript, page 91, lines 40 to 45.
[83] Transcript, page 92, lines 7 to 10.
The Applicant’s mother, father, step-mother and sister live in New Zealand. So do many of his cousins, aunts and uncles, including cousins whom he knows reasonably well.[84] The Applicant said he believes his mother, father and stepmother would be willing to support him and his family if they were to move to New Zealand, for example by helping to look after his children.[85] Those family members all live in the Applicant’s home town of Gisborne. The Applicant spoke very positively about these people.
[84] Transcript, page 95, lines 1 to 9.
[85] Transcript, page 92, lines 15 to 23; page 93, lines 21 to 41.
There appears to be limited support for the family in Darwin. The Applicant’s partner did not give evidence at the hearing, but in a letter that she wrote in 2015 after the Applicant’s visa was cancelled for the first time, she indicated that the Applicant’s absence was causing financial and emotional hardship to her.[86] She repeated that in letters of support written in response to the current visa cancellation.[87] In addition, the Applicant’s partner said her mother is deceased, her father relies on her for help, and her family does not help financially or by looking after the children.[88] When asked if his partner’s family help her the Applicant said they were “not much help at all…her sisters only live two houses up so they always come around but they’re more humbug than help…they want something for something”.[89] I accept that the Applicant’s partner does not receive financial assistance from her family and that overall she does not find them helpful. I am satisfied that the Applicant’s partner struggles financially and emotionally in the Applicant’s absence, and that she and the Applicant are likely to have better family support in New Zealand. To my mind this increases the likelihood that the Applicant’s partner and children would follow him to New Zealand.
[86] Exhibit R2, Respondent’s Bundle of Additional Documents, page 260.
[87] In an undated letter and in an email dated 20 February 2020, see Exhibit G1, s 501 G-documents, G11 and G12, pages 85 to 89.
[88] Ibid.
[89] Transcript, page 95, lines 15 to 25.
The Applicant was asked if his partner had a criminal record to which he responded in the negative, except that he thought she had a drink-driving conviction.[90] There is no evidence that the Applicant’s partner would not be able to relocate to New Zealand with their children and Child B. Considering all of the evidence, I am satisfied that if the Applicant were returned to New Zealand, his partner and their children would join him there.
[90] Transcript, page 104, line 45 to page 106 line 1.
The Applicant’s ex-wife provided a letter of support[91] in which she said the Applicant’s children, who are of Aboriginal heritage, have a connection to Australia that is of vital importance to their futures. She did not elaborate on this statement or give details about how she thought moving away from Australia, to New Zealand, would affect them. The Applicant was asked how he thought moving to New Zealand might affect his children given their connection to Australia and the fact that they have relatives in Australia. He answered in the following exchange:
A: It will affect them in a lot of ways.
Q: How so?
A: They – they – they’re not willing to move, me and [partner] are trying to sow the seed that it might be – it might be – it might be happening but they’re already not handling it.
Q: What do you mean, how do you know they’re not handling it?
A: Because they don’t want to go to New Zealand.
Q: What do you mean by not handling, are they – that suggests some sort of – - -
[91] Exhibit A1.
[92] Transcript, page 92, lines 24 to 44.
A: They just – every time it’s brung (sic) up they’re crying that they don’t want to leave Australia. Their family, their friends, their school.[92]
In the absence of meaningful evidence about the children’s connection to country and the impact of moving to New Zealand in that context, I am unable to come to any conclusion about that. However, it seems reasonable to accept that moving overseas, if it is not of their choosing, is against the children’s best interests in terms of their cultural connection to Australia.
The Applicant gave evidence that he and his partner had been discussing leaving Darwin even before he was incarcerated.[93] Accordingly, it appears that whether or not the Applicant’s visa is returned to him, it is likely that his family will move away from Darwin, so either way his children will move away from their home, school and friends.
[93] Transcript, page 91 lines 26 to 27.
I find that revocation of the cancellation of the Applicant’s visa would be in the best interests of child B and the Applicant’s biological children, and I give this Primary Consideration moderate weight in relation to those children.
The Applicant has three step grandchildren – two are the children of a step-daughter and one is the child of a step-son.[94] He nominated two in his revocation request: it appears that the third had not been born at that time (February 2019). In that document he said:
“My relationship with my grandchildren is not the strongest. For [their parents] live realy busy life styles but the spare time they get is always a joyful time to spend with them all. But its a desire of mine to be closer to my grandchildren.”[95]
[Errors in original]
[94] Transcript, page 90, lines 17 to 21.
[95] Exhibit G1, s 501 G-documents, G9, page 71.
There is no evidence of a meaningful relationship between the Applicant and any of these step-grandchildren, or any suggestion that the Applicant would ever fulfil a parental role in their lives. If the best interests of these children favour revocation of the cancellation of the Applicant’s visa it is only to a very slight extent.
Conclusion: Primary Consideration B
The best interests of the Applicant’s biological children and Child B warrant a moderate allocation of weight in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[96]
[96] See e.g Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia on a permanent basis at a very young age (six years old) and he has spent over three-quarters of his life here (32 years);
·he was first convicted of a criminal offence when he was 15 years old and offended with reasonable regularity until his most recent period of incarceration;
·he has committed serious crimes including supplying commercial quantities of cannabis to especially vulnerable communities and an aggravated assault against a female partner;
·the consequences of further offending of that type is very serious and there is at least a moderate risk that he will re-offend;
·his visa was cancelled on a previous occasion after he was convicted of supplying a commercial quantity of cannabis, and less than two years after that cancellation was revoked, he engaged in the same offending behaviour;
·he has held gainful employment since 2006, he has performed some voluntary work in his local community (set out in more detail under Other Considerations) and he helped to teach fellow inmates to read and write while in prison; and
·is his visa remains cancelled and he must return to New Zealand, it will adversely impact his partner, the minor children who live with his partner, and his son who lives with his ex-wife.
Conclusion: Primary Consideration C
The Applicant has repeatedly breached the trust of the Australian community and there is a significant risk that he will do so again. Taking all of the above matters into account, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14(1) of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand and none of the evidence suggests a risk of harm. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived permanently in Australia since the age of six. He commenced offending nine years later when he was 15. On account of his youth when he relocated, he can be afforded some tolerance, however this is militated by the fact that he commenced offending at a relatively young age.
The Applicant spent several years in gainful employment. He told the Tribunal that he has done volunteer work relating to youth through the YMCA. There is an email before me from a person who purports to be involved in an art business and to know the Applicant and his family.[97] She indicated that the Applicant is a talented artist who gives his time to teach others. She said her business collaborates with the YMCA on youth diversion programs and that there are opportunities for the Applicant to collaborate on future programs and events. While this person did not explicitly say the Applicant has done that in the past, I am prepared to accept that he has. Further, the Applicant’s ex-wife gave evidence that he had been involved in youth diversion activities. The Applicant taught fellow inmates to read and write while in prison. These matters are in the Applicant’s favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
[97] Exhibit A2.

With respect to paragraph 14.2(1)(b), the Applicant has an ex-wife, a partner, eight biological children, four step-children, three step-grandchildren, some in-laws and some relatives in Australia. I am satisfied that his ex-wife, partner, children and step-children are Australian citizens. His partner, biological children and minor step-children will be negatively impacted if he is removed to New Zealand as already discussed. His ex-wife may be impacted to a limited extent as she has an interest in her son being able to visit the Applicant and she believes that will be more difficult if he is in New Zealand. The Applicant said he has many work ties, and I accept that. There is no evidence that they would be adversely impacted by his removal to New Zealand. These matters together entitle him to significant weight in favour of revocation.
The strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). The Applicant’s partner is a victim of two domestic violence offences, and she wishes him to stay in Australia. His presence in Australia would help to alleviate the financial and emotional stress she is under. There is no information before me about the interests of any other victims. This Other Consideration (d), weighs moderately in favour of revocation.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
At 38 years of age, the Applicant is relatively young. He is able bodied and does not claim to have any psychological conditions. He mentioned being pre-diabetic and having some renal function issues, but there is no evidence of a diagnosis or treatment, or of these conditions impairing his ability to function in everyday life.
The Applicant has a qualification and a good work history. I am satisfied that he has good employment prospects. As a New Zealand citizen, he is entitled to income support.
It is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia, and that he would be able to access the same supports that are available to other New Zealand citizens. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand, which is culturally and linguistically similar to Australia.
The Applicant has not lived in New Zealand since 2004 and he will have to obtain accommodation and employment as part of the re-settlement process. However, he will have the support of his immediate family, and as mentioned above, he has good employment prospects. He also has cousins there who he knows so I am satisfied that he would not be socially isolated.
Accordingly, I am of the view that this Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs heavily in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: weights moderately in favour of revocation; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b), (d) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy.

..........................[SGD]..............................................
Associate
Dated: 24 August 2020
ANNEXURE A – EXHIBIT LIST

EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED

G1 Section 501 G-Documents (G1 to G20 pages 1-142) R - 25 JUN 2020

R1 Respondent’s Statement of Facts, Issues and Contentions (pages 1-19) R - 29 JUL 2020

R2 Respondent’s Bundle of Additional Documents (pages 1-271) (2 volumes) R - 29 JUL 2020

A1 Letter of Support of the Applicant’s ex-wife (1 page) A - 7 AUG 2020

A2 Letter of Support of Ms Stevenson (1 page) A 5 AUG 2020 7 AUG 2020

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G20 pages 1-142)	R	-	25 JUN 2020
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1-19)	R	-	29 JUL 2020
R2	Respondent’s Bundle of Additional Documents (pages 1-271) (2 volumes)	R	-	29 JUL 2020
A1	Letter of Support of the Applicant’s ex-wife (1 page)	A	-	7 AUG 2020
A2	Letter of Support of Ms Stevenson (1 page)	A	5 AUG 2020	7 AUG 2020