Keogh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3003
•9 July 2020
Keogh and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3003 (9 July 2020)
Division:GENERAL DIVISION
File Number(s): 2020/2231
Re:Trent Keogh
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:9 July 2020
Date of written reasons: 12 August 2020
Place:Sydney
For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review, being the decision of a delegate of the Respondent dated 3 April 2020, and in substitution, decides to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.............................[SGD]...........................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation – failure to pass the character test – supply of prohibited drug – where low risk of reoffending – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to return – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
CLRJ and Minister for Home Affairs (Migration) [2019] AATA 4892
Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020)
HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1634
Scarlett and Minister for Home Affairs (Migration) [2020] AATA 371
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
12 August 2020
On 10 December 2016, the Knockout Circuz musical festival was held at the Dome at Sydney Olympic Park. Two women in their early twenties were arrested trying to smuggle a quantity of MDMA capsules into the festival. They were charged with supplying a prohibited drug contrary to s 25 of the DrugMisuse and Trafficking Act 1985 (NSW).[1] On 25 October 2018 the women were sentenced to, in one case, a period of 12 months imprisonment; in the other, 14 months’ imprisonment; in both cases to be served by way of community detention.[2]
[1] G21, at p 343.
[2] G21, at p 360.
Some months after the women were charged, the applicant and two male co-offenders were arrested and charged with offences associated with this incident. His male co-offenders were each charged with supplying a prohibited drug, in contravention of s 25 of the Drug Misuse and Trafficking Act 1958 (NSW). The applicant was charged with knowingly taking part in the supply of a prohibited drug, not being cannabis.[3] On 1 March 2019, the applicant was convicted and sentenced to a term of imprisonment of two years and three months, with a non-parole period of one year and five months.[4]
[3] G2, at p 26.
[4] G2, at p 47.
The applicant is a citizen of New Zealand. At the time of the offending he was 24, having been born in September 1992. He first arrived in Australia on 14 June 2012, at the age of 19, and was granted a Subclass 444 – Special Category visa. As a result of his conviction in 2019, his visa was mandatorily cancelled under s 501(3A)(a)(i) of the Migration Act 1958 (Cth) (the Act).
Pursuant to s 501(3A)(a)(i) of the Act, the Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test because they have a ‘substantial criminal record’ as defined under s 501(7)(c).
When a visa is mandatorily cancelled pursuant to s 501(3A), the Minister must give the person concerned written notice of the cancellation setting out the original decision and particulars of the relevant information, and inviting the person to make representations to the Minister about revocation of the original decision: s 501CA(3)(a)(b).
The Minister may revoke the original decision if representations have been made in accordance with the invitation and the Minister is satisfied that the person passes the character test or there is ‘another reason’ why the original decisions should be revoked: s 501CA(4).
It is not in dispute that the applicant does not pass the character test, having been sentenced to a term of imprisonment of 12 months or more. The sole issue before the Tribunal is therefore whether there is another reason why the original decision should be revoked.
THE HEARING
The matter was heard on Friday 3 July 2020[5] and 6 July 2020.
[5] The Transcript is erroneously dated 3 June 2020.
The evidence before the Tribunal consisted of various letters of support and references filed by the applicant together with two personal statements dated 14 May 2020 and 10 December 2018.
The Respondent filed a Statement of Facts, Issues and Contentions dated 29 April 2020.
The following persons appeared by telephone to give character evidence:
1.Desmond Smith (Applicant’s cousin);
2.Adam Vinnicombe (Applicant’s friend);
3.Rachel Kilroy (Applicant’s former partner);
4.Chloe Alderton (Applicant’s friend);
5.Stephen Mccutcheon (Applicant’s friend and former colleague).
DIRECTION NO. 79
A determination under s 501CA(4) must be carried out in accordance with any written directions given under s 499(1) of the Act: s 499(2A). The Minister has given such written directions. The Tribunal is bound to comply with the terms of Direction No. 79, which commenced on 28 February 2019, by reason of s 499(2A) of the Act.
Part C of the Direction governs the relevant considerations relevant to determining whether the mandatory cancellation of a non-citizen’s visa will be revoked: see paragraph 7(1)(b).
There are a number of important rules governing the way in which considerations must be taken into account. These may be summarised as follows:
(1)Considerations are divided into primary and other considerations: see paragraph 8(1);
(2)Information and evidence from independent and authoritative sources should be given appropriate weight: see paragraph 8(2);
(3)Decision-makers must take into account the primary and other considerations relevant to the specific category of decision in question: see paragraph 8(1);
(4)Both primary and other considerations may weigh in favour of, or against…: see paragraph 8(3);
(5)Primary considerations should generally be given greater weight that the other considerations: see paragraph 8(4).
(6)One or more of the primary considerations may outweigh other primary considerations: see paragraph 8(5).
Paragraph 13(2) provides:
(1)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14 sets out the other considerations to be taken into account where relevant, and states:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
PART A – PRIMARY CONSIDERATIONS
Primary Consideration 1 (PC1): Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) provides that when considering the protection of the Australian community, decision-makers must 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.
Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community ...;
Under 13.1(2) I should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date;
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
Paragraph 13.1.1 outlines a number of factors that must be considered in relation to the nature and seriousness of the applicant’s conduct. The factors fall into those defined in terms of the identity of the victim or the context of the offending, and other factors relevant to the offender. The factors that are relevant to this case include the sentence imposed (1)(d); the frequency of offending (1)(e); and the cumulative effect of offending (1)(f).
The sentence imposed: (1)(d)
On 1 March 2019, the applicant was convicted before the District Court of NSW on a plea of guilty of knowingly taking part in the supply of a prohibited drug. The offence is a serious one, attracting a maximum penalty of 15 years of imprisonment and/or a fine of 2,000 penalty units. The prohibited drug in question was 3,4-methylenedioxymethylamphetamine, commonly known as MDMA.[6] The court was asked to take into account an offence of participate in a criminal group, contrary to s 93T(1) of the Crimes Act 1900 (NSW).[7] The applicant was sentenced on the basis of a statement of agreed facts[8] to imprisonment for a period of two years and three months, with a non-parole period of one year and five months.[9]
The frequency of offending (1)(e)
[6] G2, at p 26.
[7] Section 93T(1) provides: (1) A person who participates in a criminal group is guilty of an offence if the person—
(a) knows, or ought reasonably to know, that it is a criminal group, and
(b) knows, or ought reasonably to know, that his or her participation in that group contributes to the occurrence of any criminal activity. Maximum penalty—Imprisonment for 5 years.
[8] G21, at p 294.
[9] G2, at p 22.
I note that in sentencing the applicant, the sentencing judge noted that his record was confined to one prior incident committed in April 2018 (possession of steroids) which resulted in ‘no-conviction recorded’, and that he was not disentitled to leniency by virtue of his record.[10]
The cumulative effect of offending (1)(f)
[10] G2, at p 39.
There is no cumulative effect in this case, given the lack of any record of repeat offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The present case involves offending by way of the supply of prohibited drugs and it must be accepted that such behaviour is very serious and harmful and may even lead to catastrophic consequences, such as the death of the end user. Fatal consequences associated with MDMA usage are not uncommon, including in the specific context of music festivals.
The Tribunal is also required to consider the risk of future acts of a similar kind. The lack of any criminogenic factors and the absence of a criminal record suggest that the likelihood of recidivism is low.
I note that the sentencing judge found that the applicant had reasonable prospects of rehabilitation and is unlikely to reoffend.[11]
[11] G2, at p 43.
In passing sentence, the judge noted the report by consultant clinical psychologist Sam Borenstein[12] and a report prepared by Dr Jayalath, consultant psychiatrist.[13] The judge’s sentencing comments include the following:
The offender gave a background and details in relation to his life in moving from Australia to New Zealand and as Mr Borenstein noted Mr Keogh’s life circumstances changed dramatically following his mother’s sudden death in a motor vehicle accident on 30 April 2016 in New Zealand.
His parents had separated and divorced when he was 18 after which his mother fell into a severe depression. The offender cared for his mother during that period of time and decided to come to Australia in 2012 to improve his life circumstances. He felt guilty for abandoning his mother at a time when she was significantly depressed.
His life circumstances were uneventful prior to his mother‘s death in April 2016. He was working hard and involved in a stable relationship. He had savings and was a recreational user of drugs and a social consumer of alcohol. He pursued fitness and positive lifestyle choices. Upon his mother‘s death he immediately returned to New Zealand and remained there for a month. His mother‘s death was a significant turning point in his life. He started to binge drink and act out and he increased his drug usage. When he returned to Australia his relationship with his then girlfriend ended. He said that she had cheated on him. The offender made an attempt on his life by way of hanging and then refused a mental health follow-up. The end of the relationship compounded the offender’s complicated grief, against which he self-medicating and compensated by way of increasing his alcohol and drug consumption, attending music festivals and having casual relationships. He received positive affirmation from women and friends about his appearance and he stated that at one stage he had a following on social media providing ongoing positive feedback which together with the alcohol and drugs assuaged his grief and depression.
He described symptoms of an Obsessive Compulsive Disorder, speaking about his rituals including the way he would work.
The offender told Mr Borenstein that he felt obliged to respond to a request from a friend when asked to arrange for girls to take the drugs into the music festival and the offender agreed to the request. Leading up to and during the offending period the offender was navigating complicated and unresolved grief with a comorbid diagnosis of depression and anxiety: the latter taking the form of obsessive compulsive symptoms.
Since his arrest the offender has ceased drug usage. He has significantly reduced his alcohol intake. He pursues positive lifestyle changes and it is said he had nearly completed a personal training course and he was gainfully employed. It was said that the offender has a strong work ethic.
[12] G2, at p 40.
[13] G2, at p 41.
The issue of rehabilitation programs including psychological treatment for addiction or grief associated with the loss of his mother were canvassed at the hearing. He said that he had not had any grief counselling dealing directly with the loss of his mother. He gave evidence that he attended a drug rehabilitation program at Blacktown Odyssey House on 26 November 2018 as recommended by his sentencing officer; and that when he got to Manus Island he did look into whether there were any programs that he could undertake, but was told that he was not eligible because of his low offending risk category.[14]
[14] Transcript, 3 July 2020, at p 41-2.
He said that he was prescribed antidepressant medication when he first went to prison, and then again on Manus Island he took a drug called paroxetine, and although he didn’t think he needed such medication anymore he was still taking it to show that he was cooperating with corrective service.[15]
[15] Transcript, 3 July 2020, at p 36.
The Tribunal may be reasonably confident that in this particular case, the applicant is unlikely to consume or sell prohibited substances in the future.
Having examined the risk indicators in Direction No. 79, I assess the likelihood of reoffending as very low. There is no pattern of criminality; a credible explanation for the offending in terms of the unsettling nature of his mother’s death; and his time in prison was on the lowest security rating available to him.
Conclusion on PC1
The length of sentence imposed on the applicant is a pressing consideration.
In assessing the weight to be accorded to PC1, I take into account the fact that the applicant does not have a history of drug taking or antisocial behaviour before his arrest. He had no criminal antecedents. He had no record of antisocial behaviour. There is no evidence that he was part of any drug culture. As a boy and young adult he was interested in soccer and personal fitness, rather than recreational drugs.
The evidence before the Tribunal is that he has made very positive steps towards rehabilitation and I note in particular that for the duration of his sentence he was on the lowest security rating.
PC1 is not an overwhelming consideration in the circumstances of this particular case.
I find that PC1 favours non-revocation but only slightly.
Primary Consideration 2: The best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of minor children in Australia who may be affected by cancellation of the applicant’s visa.
Paragraph 13.2 provides that in considering the best interests of the child, certain factors (eight in number) must be taken into account. I have noted these factors.
In assessing the weight to be accorded to PC2, I have considered the relationship with three children, the two year son of his former girlfriend, Ms Kilroy, and the two children of a close family friend, Ms Kayla Marsh.
Ms Kilroy has a son, barely two years old. The applicant would like to be a father figure to him in the future. His prospects of success in re-establishing a relationship with Ms Kilroy are uncertain. With youthful optimism, he hopes to rekindle a relationship with her, although her evidence was very guarded in this respect, understandably perhaps given the cancellation of his visa and therefore his right to be in Australia. She was not planning on migrating to New Zealand if he is to be deported there. During the course of evidence, she was asked:
And my final question, which may be quite a difficult question because largely it is a matter for you and Mr Keogh, but if he was to be no longer in Australia, so if his – if this decision goes against him and he was to return to New Zealand would you pursue a relationship again with him?‑‑‑ No.[16]
[16] Transcript, 6 July 2020, at p 81.
Little weight can be attached to the best interests of Ms Kilroy’s son, in relation to the applicant, when the existence of an ongoing relationship with his mother is so uncertain.
The other two minor children are the children of a close friend, Ms Kayla Marsh, and given the lack of physical contact especially during his 15 months of incarceration, it is hard to assign much weight to these relationships.
It can be said of the three children that each has a parent to provide care and support, and there is no reason to believe that any of them would suffer neglect were he not to be part of their lives.
The respondent submitted that this primary consideration was somewhere between neutral and pointing slightly in favour of revocation.[17] I agree. I find that the best interests of children in Australia (PC2) favour revocation, but only very slightly.
[17] Transcript, 6 July 2020, at p 97.
Primary Consideration 3 – Expectations of the Australian Community
Paragraph 13.3(1) provides as follows:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. 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. Decision makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185, a case dealing with the equivalent clause applying to refusal of a visa application in Part B (clause 11.3), a majority held that identifying the expectations of the Australian community was not an empirical matter subject to proof. The majority decision in FYBR supports the proposition that it is for the Tribunal as decision-maker to determine, in light of the particular circumstances of the case, how decisively PC3 operates in favour of revocation of the mandatory cancellation decision. In general, the more serious the breach, the more it weighs against revocation, and it may even be decisive. It is hard to imagine a case where PC3 would not weigh, at least to some degree, against revocation. The High Court declined to grant special leave to appeal from the majority decision.[18]
[18] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56 (24 April 2020).
In assessing the weight to be assigned to PC3, the individual circumstances of the applicant are necessarily ‘front and centre’ in this decision-making process. However, this process must be conducted within the context of the principles contained within paragraph 6.3. These are stated to be of ‘critical importance’ in furthering the Government’s objective of protecting the Australian community from harm as a result of criminal activity: cl 6.2(1). These principles ‘reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable’: cl 6.2(1).
One of the principles is that a non-citizen who has committed a serious crime should ‘generally’ expect to be denied the privilege of staying in Australia: cl 6.3(3). Another principle is that in some circumstances the criminal offending and the harm that would be caused if repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa: cl 6.3(4).
The respondent tendered a Commonwealth document entitled National Drug Strategy 2017-2026,[19] in support of the proposition that the drug supply offence is extremely serious:[20]
Now, the Minister maintains his contention that firstly the nature of the harm to individuals should the applicant engage in further criminal conduct of the kind in which he had previously engaged, being the drug supply offence, is extremely serious. That contention is based upon the reliance on the … Department of Health’s national drug strategy for 2017 to 2026 which provides that MDMA can cause mental illness, cognitive impairment, cardiovascular problems and overdose.
[19] G22, at p 372.
[20] Transcript, 6 July 2020, at p 92.
The National Drug Strategy supports the proposition that supplying or being knowingly involved in the supply of MDMA is a serious offence. Generally, a non-citizen convicted of such an offence should expect to be denied the privilege of staying in Australia: cl 6.3(3).
Given that the offence in question occurred in NSW, it is also relevant to refer to developments in that state. In NSW, the Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants (the Commission) was established in November 2018, with broad Terms of Reference.[21] The Commission was set up in the wake of the findings of the Deputy State Coroner Grahame, in conducting the inquest into the deaths of six patrons of NSW music festivals, Hoang Nathan Tran, Diana Nguyen, Joseph Pham, Callum Brosnan, Joshua Tam and Alexandra Ross-King.[22]
[21] Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants: <accessed 10 August 2020>.
[22] Findings of NSW Deputy State Coroner Grahame, 8 November 2019, 306-307.
The Commission gathered extensive evidence about the use and impacts of crystal methamphetamine (‘ice’) and other illicit amphetamine-type stimulants (ATS). The Commission found that use of MDMA at music festivals is widespread; and that music festivals are associated with higher rates of MDMA use than occur in the general community, and that there has been an increase in the level of drug-related harm at music festivals in the past decade.
The Commission’s recommendations included decriminalisation of simple possession, pointing to dramatic global changes in drug policy.[23] The Commission argued:
An effective and appropriate response to personal drug use recognises it as primarily a health issue with complex social determinants rather than as a criminal justice issue. Such an approach is consistent with international drug policy and the National Drug Strategy.
[23] <accessed 11 August 2020>, Chapter 11. See Executive Summary, page xxx, para 39.
The Commission also noted that in 2018 NSW introduced a form of decriminalisation for prohibited drugs other than cannabis, through the trial of the Drug Criminal Infringement Notice scheme. This permits police to issue a fine to people detected with small amounts of prohibited drugs at music festivals, with no further action taken.[24]
[24] Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants, op cit, Foreword, page xxxi, paragraph [45].
The Commission drew a sharp distinction between simple possession and supply type offences.
It is imperative that we continue to target the supply of illicit drugs and punish supply, manufacture and other serious drug-related and drug-fuelled crimes with the force of the criminal law. However, the evidence before the Inquiry demonstrates that a different and more nuanced response than criminal prosecution is called for in relation to the offences of use, and possession for personal use, of ATS and other illicit drugs. A determined whole-of government approach to effective public health messaging, improved harm reduction measures, education, research and properly resourced treatment pathways will achieve far better outcomes for people who use and possess these drugs, and for society as a whole. The current stance of our criminal law towards use and possession of drugs has failed to have any significant impact on the prevalence of illicit drug use in NSW. Criminalising use and possession encourages us to stigmatise people who use drugs as the authors of their own misfortune. It gives us tacit permission to turn a blind eye to the factors driving most problematic drug use: trauma, childhood abuse, domestic violence, unemployment, homelessness, dispossession, entrenched social disadvantage, mental illness, loneliness, despair and many other marginalising circumstances that attend the human condition. This is a profound flaw in our approach to illicit drug policy.[25]
[25] Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants, op cit, Foreword, page viii, para [70].
The clear message from the Commission is that supply of substances such as MDMA should be deterred and that the criminal law is an appropriate means of doing so. The evidence is that the physical environment of music festivals, where conditions of poor hydration and high temperatures abound, are extremely hazardous for MDMA users.
I note in passing that some of the more controversial recommendations of the Commission have not been accepted by the present NSW Government. These include the provision of further medically-supervised injecting centres, stopping the use of drug detection dogs, placing needle and syringe programs in correctional centres and limiting police strip search powers so as not to focus on mere drug possession. The failure of the Government to act on these recommendations has been the subject of some academic criticism.[26]
[26] ‘UNSW academics say government response to Ice inquiry “disappointing”’, Medianet, News & Current Affairs, 28/02/2020: <accessed 11 August 2020>.
I have referred to the Commission’s report because, together with the Commonwealth’s National Drug Strategy, it can be seen that issues surrounding drug policy, especially in relation to cannabis and MDMA, are not free from controversy. To take one example, although MDMA was linked to the deaths of six young adults who attended music festivals in NSW between December 2017 and January 2019,[27] a recent study suggests that MDMA accounts for barely 4% of drug related deaths at musical festivals over the past 20 years.[28] It may well be that in the minds of the young people most prone to consume party drugs like ecstasy at music festivals there is an air of unreality or ‘catch me if you can’ about the present drug laws. The effective decriminalisation of cannabis and MDMA for personal use may send a message that these substances are not really harmful. This is further compounded by distinctions drawn between providing a few MDMA tablets within a friendship group and supply to strangers. To some extent this is reflected in the applicant’s testimony that neither he nor his girlfriend considered that the offence of which he stood convicted was sufficiently serious to warrant the loss of his visa.
[27] Special Commission of Inquiry into crystal methamphetamine and other amphetamine-type stimulants, op cit, Foreword, at p vii.
[28] Music festivals responsible for minuscule percentage of drug deaths, Sydney Morning Herald, January 27, 2020, commenting on the findings of a study by the National Drug and Alcohol Research Centre (NDARC) published in the International Journal of Drug Policy.
Regardless of the complexities of the present debate around drug policy, there is in my mind no doubt that PC3 weighs heavily against the applicant.
PART B - OTHER CONSIDERATIONS
(a)OC1: International non-refoulement obligations:
The country to which the applicant will be returned in New Zealand. Non-refoulement issues do not arise for consideration in this case.
(b)OC2: Strength, nature and duration of ties;
The applicant has been in Australia for eight years. He has an employment record which includes working as a forklift driver and as a personal trainer.
He has a number of close relatives in Australia. He listed eight cousins in his Personal Circumstances Form,[29] and provided ten letters of support, as well as a number of character references. The Tribunal heard from five witnesses including his former girlfriend Ms Rachel Kilroy. He has an especially close relationship with one of his cousins, Mr Smith, who the applicant described as a father-like figure to him.[30] Desmond Smith wrote a letter of support dated 10 December 2019.
[29] G7, at p 67.
[30] Transcript, 3 July 2020, at p 56.
The overall impression is that the applicant has a number of friends and cousins in Australia who care for him, who believe that his offending was out of character, and that there is reason to be optimistic about his future were he to remain in Australia. Naturally, one takes into account the inherent bias of such views. However, there were some candid assessments, such as that given by his former girlfriend, Ms Kilroy, with whom he hopes to continue his relationship. She made it plain that she would not accompany him to New Zealand if the decision went against him.
I accept that his relationships in Australia are vitally important to him. Given the view I have formed about his vulnerability, discussed further below, this is an important element in the decision-process.
I find that the strength of his ties to Australia support revocation of the mandatory cancellation.
(c)OC3: Impact on Australian business interests;
There is no material before the Tribunal pointing to any impact in the relevant sense upon Australian business interests.
(d)OC4: Impact on victims;
There is no evidence of any impact on any particular victim.
(e) OC5: the extent of impediments the applicant may face if returned to New Zealand
At first blush, it would seem that this consideration must weigh against the applicant. He moved to Australia from New Zealand at the age of 19. He is now 27. He has lived for most of his life in New Zealand. He is familiar with the customs, language and style of life in that country. He is proud of his Maori lineage. He wears a tribal Maori tattoo on his chest which shows his family tree. The tattoo is spiritually and artistically satisfying to him.[31] He has family members in New Zealand. His father lives there, as does his brother and sister. He has transferrable skills. He has a forklift certificate and is a personal trainer. Superficially, there is no reason why, at his relatively young age, he could not make a successful transition back to New Zealand.
[31] Transcript, 3 July 2020, at p 55.
There is however, an aspect of his life that is relevant both to his past offending and to his future in New Zealand. According to the witnesses and many references put to the Tribunal, the applicant was deeply affected by the death of his mother in New Zealand in April 2016. In the aftermath of this tragedy, the applicant clearly made bad life decisions. His choice of friends moved to the fringes, and he took part in a plan to smuggle ecstasy tablets (MDMA) into a music festival. According to those who gave evidence for him, such behaviour was completely out of character.
His mother’s death in New Zealand was apparently a death by a suicide. This is an important factor in the present proceedings.[32] It occurred after her marriage to the applicant’s father disintegrated and not long after the applicant left New Zealand to come to Australia.
[32] G2, at p 73.
On 22 September 2016, the applicant also attempted suicide following a relationship breakdown. He was admitted to Blacktown hospital.[33] This is deeply troubling. Youth suicide is remarkably high in Australia.
[33] G20, at p 267.
The file description is as follows:
The PAT (patient) is a New Zealander living in Australia. He has no family in the country and resides at the location with his girlfriend and her family. 6 months ago his mother was killed in a car accident in New Zealand and he has been depressed ever since. In the evening of 21/09/2016 the PAT became sad, he obtained some electrical cable from a room within the house and left via the front door. He went to the reserve next door where there is a children’s playground/swing. He tied the cable around his neck and looped it over the top of the swing set. He did not tie it correctly so when he tried to lift his feet off the ground the cable unwound and he fell to the ground. His girlfriend’s father found him and contacted the NSW Ambulance. The PAT was spoken to by Police and was conveyed to the Blacktown hospital.
He does not appear to have been detained for treatment but was released soon thereafter. His attempted suicide as a reaction to a problem in his relationship with his girlfriend is indicative of his own volatility and mental fragility.
I have formed the view that I should approach the question of his return to New Zealand with some caution. There is clear evidence of his mental fragility, and at least one recorded attempt of serious self-harm.[34] He is taking anti-depressant medication and although he does not think the medication necessary, he would be wise to seek ongoing medical advice in this regard. I do not place much reliance on his own belief that he does not require ongoing treatment for depression. It is apparent from the evidence given to the Tribunal that the pain he carries is too close to the surface to fly solo without good support.
[34] G2, at p 25-48; G2, at p 82-86; G2, at p 90-94; G2, at p 95-101; G20, p 267.
The applicant received an enormous psychological blow with the loss of his mother. Removal to New Zealand will present serious psychological and emotional challenges for the applicant. Simply put, he does not have solid support systems in New Zealand; whereas in Sydney he has a strong support network. The absence of a support network is a strong indicator of the potential for self-harm.
It is my assessment that the applicant will face very significant challenges of an emotional and psychological nature upon his return. The evidence before the Tribunal, given by friends, health professionals and recognised by the sentencing judge, is that the applicant was deeply affected by the death of his mother. The circumstances of that death were the source of extreme anguish, and guilt. There is evidence that he felt guilty about leaving his mother in New Zealand and coming to Australia. The evidence before the Tribunal is that, for the applicant, New Zealand is associated with painful memories about the breakdown of his family when he was a teenager and the later death of his mother by suicide while he was living in Australia.[35] If returned, he will be exposed to these confronting issues from the past.
[35] G2, p 77.
The family breakdown has taken a toll on the applicant’s relationship with his father and his brother and sister. He says that he is estranged from his siblings in New Zealand and has a distant relationship with his father. The respondent’s solicitor noted that the applicant’s father had written a letter of support for his son. Although he received the support of his father during these present proceedings, it is obvious that the relationship was profoundly damaged by the breakdown of the marriage. He did not accept his father’s choices or his new partner. He remains at odds with his siblings in New Zealand. It matters not where right or wrong lies in this; there is little doubt that it had a major impact on the applicant. I note moreover that the father expressed the hope therein that his son would be allowed to remain in Australia rather than return to New Zealand, despite the travails that the applicant has experienced over the past few years.[36]
[36] Transcript, 6 July 2020, at p 99.
The psychological harm flowing from a major life crisis like family breakdown is
difficult to predict. Family breakdown is nearly always adverse to one’s mental health; even for a person of ordinary mental fortitude. Some people are especially vulnerable and it is common knowledge that the intensity of psychic pain varies significantly according to social factors such as the presence of solid support systems, whether from family, friends, or professional helpers.
The evidence before the Tribunal is that the applicant has lost contact with school friends and is estranged from key members of his family including his brother and sister and his father’s new partner, and has a difficult relationship with his father following the breakdown of the family. He would be very dependent on professional support or the support of strangers.
My overall judgment is that being returned to New Zealand would be a return to a place of unresolved grief and trauma and would have unpredictable consequences on the mental health of the applicant at a critical time.
Despite those factors which might ordinarily point to the ease with which the applicant might resume life in New Zealand, in the particular circumstances of this case, I find that the applicant may face very significant impediments if removed and that there would be concerns about his safety and his mental health. The loss of a wide and supportive friendship group in Australia, the loss of a potential relationship with Ms Kilroy, especially painful because of what might have been, and the return to a place of unresolved grief would be a major psychological blow.
I therefore find that this factor weighs significantly in favour of revocation of the mandatory cancellation.
WEIGHING THE FACTORS
Two of the primary considerations favour non-revocation. My analysis of PC1 suggests that this is not a particularly egregious case of offending, for the reasons outlined above. This was not a large scale operation and appears to have been a one-off incident. The crucial question in the case is whether PC3, the expectations of the Australian community, weighs so strongly as to outweigh countervailing considerations.
The commission of an offence of drug supply and the sentence imposed automatically results in a finding adverse to the applicant. The expectations of the Australian community generally point against the visa holder in such cases. However, in the particular circumstances of this case, PC3 is not decisive.
I am mindful of the comments by Stewart J in FYBR discussed above.
[103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker…
[105] The specific circumstances of the visa applicant are necessarily front and centre of every decision.
While PC3 is against the applicant, it is not so strongly weighted as to outweigh other considerations that the Government has declared in Direction No. 79 must be taken into account.
This is a case where the structured decision-making provided by Direction No. 79 does not provide a clear answer. It is not difficult to find decisions of the Tribunal which point in opposite directions in a case such as this.[37] The considerations are finely balanced. I accept that primary considerations should generally be given greater weight that the other considerations: see paragraph 8(4). But in this case the primary considerations are not decisive.
[37] See for example Scarlett and Minister for Home Affairs (Migration) [2020] AATA 371 - possession of 297 caps of MDMA - deportation affirmed; and CLRJ and Minister for Home Affairs (Migration) [2019] AATA 4892.
My judgment is that the two primary considerations PC1 and PC3 which favour non-revocation are outweighed by the other considerations, specially, PC2, OC2 and OC5. The comments by Deputy President McCabe that we are a nation built on second chances are apposite here.[38]
[38] Do and Minister for Immigration and Border Protection (Migration) [2016] AATA 390, [23]; applied in HMDS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1634 at para [117], per Senior Member Puplick.
I find that the applicant fails the character test, but that there is ‘another reason’ why the mandatory cancellation decision should be revoked.
I am therefore satisfied that the correct or preferable decision is to set aside the decision under review, namely, the decision made by the delegate on 3 April 2020, and in substitution, decide that the applicant’s Class TY Subclass 444 Special Category visa is not cancelled under s 501(3A) of the Act.
I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.............................[SGD]...........................................
Associate
Dated: 12 August 2020
Date(s) of hearing: 3, 6, 9 July 2020 Applicant: In person Solicitors for the Respondent: R Law, Clayton Utz
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