Kristensen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 3814

Kristensen and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3814 (14 October 2022)

Division:GENERAL DIVISION

File Number(s):      2022/6080

Re:Niels Elgaard Kristensen

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:14 October 2022 

Date of written reasons:        11 November 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

..............................[sgnd]....................................

Senior Member Dr N A Manetta

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – whether there is another reason to revoke the mandatory cancellation decision – sexual offending occurred when applicant a young adult – serious drug offending but low risk of recidivism - psychological impact on children if applicant deported - decision under review is set aside and substituted

Legislation

Migration Act 1958 (Cth)

Cases

Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119

Secondary Materials

Direction no 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

11 November 2022

1. After delivery of my oral decision, I received a request for written reasons, which I now publish.  These are the reasons I read out with minor amendments.

2. This is an application by Mr Niels Elgaard Kristensen seeking a review of a decision of a delegate of the respondent dated 22 July 2022. By this decision the delegate affirmed an earlier decision to cancel Mr Kristensen’s visa (a class BF transitional (permanent) visa). The earlier decision was taken mandatorily under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). Mr Kristensen had been found guilty of an offence resulting in a lengthy term of imprisonment, and he was obliged to serve part of this term on a full-time basis in gaol. In these circumstances, the decision was taken that the visa was required in law to be cancelled. On my review, that decision was appropriate.

3. Mr Kristensen made a timely representation under the Act to have the cancellation decision reviewed and revoked. The delegate tasked with that internal review was required to address two questions under the Act. The first question was whether Mr Kristensen passed the so-called “character” test under section 501: see section 501CA(4)(b)(i). Given the lengthy prison sentence, Mr Kristensen could not satisfy the test: see section 501(6) and (7)(c). The second question was whether there was “another” reason for revoking the cancellation decision. In reaching his or her decision on this matter, the delegate was required to apply Direction 90 issued under section 499 of the Act. The delegate concluded that there was not another reason warranting the revocation of the cancellation decision.

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence before me, I must address the same two questions that were addressed by the delegate who conducted the internal review. I can say at once that, on my review, it is clear that Mr Kristensen does not pass the character test. The only controversial question before me was whether there was another reason for the visa cancellation to be revoked. Like the delegate, I am obliged to apply Direction 90 in addressing this question.

5. In matters like this, the Tribunal proceeds de novo, to use the Latin expression.  It receives evidence, makes its own findings, and draws its own final conclusions of fact: it does not merely review the delegate’s decision for error.  It follows that I may set aside a decision under review notwithstanding the absence of any discernible error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before me; equally, I may affirm a decision under review notwithstanding the presence of an error in the delegate’s reasoning if that is the correct or preferable decision.

6. At the hearing before me, Mr Kristensen represented himself; Mr Ellison represented the respondent. I am grateful for the assistance Mr Ellison gave me.  He conducted the hearing in an appropriately measured and fair way.

   STATEMENT OF CONCLUSION

7. I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Kristensen’s visa be revoked.  I now set out the background facts and my reasons for this conclusion.

   BACKGROUND FACTS

8. Mr Kristensen was born in South Korea on 18 May 1976.  He has no recollection of his birth parents.  When he was two years of age, he was adopted by Danish parents and was taken to Denmark.  He lived in Denmark until he was twelve years of age, and he remains a citizen of that country.  His adoptive parents divorced when he was quite young (namely, when he was only five or six) and still living in Denmark. His adoptive mother remarried there, and her new husband became a true father to Mr Kristensen. That is the way Mr Kristensen said he regarded the matter.  I accept his evidence.

9. The family moved from Denmark to Australia in 1989.  Apparently, the move to Adelaide came about when Mr Kristensen’s second adoptive father was offered a permanent position in connection with his business as an electrical contractor. His adoptive mother was a chef who ran various businesses in the hospitality industry including cafés and restaurants.

10. Mr Kristensen gave evidence that his adoptive parents’[1] marriage in Australia was a happy one. He was an only child.  Mr Kristensen described his relationship with his adoptive parents in Australia as good. I accept that evidence.

    [1] By “adoptive parents”, I mean Mr Kristensen’s adoptive mother and her second husband who became a father to Mr Kristensen.

11. Mr Kristensen had completed most of his primary schooling in Denmark when he came to Australia. His first school in South Australia was Christies Beach High School, which he attended for some one-and-a-half to two years before he moved to Reynella East High.  He described himself as an average student. He had no English from his schooling in Denmark, but he picked up English quite quickly, he said.

12. He found Christies Beach High a challenge at first. At Reynella East, he said he found fitting in hard, but he eventually felt comfortable there. At the end of Year 10, he left school to begin work as a kitchen hand. He placed this time of his life, tentatively, as 1991 or 1992.  This first job was with the St Francis Winery. He said he had a good experience there and enjoyed it. He worked at the Winery for under a year and then chose to take up another employment opportunity as an assistant landscaper with a person whose name he can no longer recall. The job lasted about six months. Mr Kristensen then had a short stint with his second adoptive father working as his assistant electrician for some three to four months. Mr Kristensen then became a welder.  He worked in Lonsdale at the Skillshare Centre, as I understood the evidence. He was a welder/boilermaker there for some years. He then worked for SA Fire Enterprises, a company located in Thebarton, again as a welder. He was there for some three years. In the late 90s, Mr Kristensen got a job with Tenneco in Lonsdale. It lasted two years approximately.

13. His mother then fell ill with liver failure.   Mr Kristensen quit his job in about 2000 or 2001 to look after her full-time. They moved to Cairns, Queensland. In 2003, his mother left Cairns for Denmark on the assumption that she had a limited life expectancy.  I should note that his adoptive parents’ marriage had earlier ended in separation in about 2001.

14. After his mother had left for Denmark, Mr Kristensen stayed in Cairns for some three months, but returned to Adelaide, aged 27 or 28. He stayed with a friend in the Riverland for a short period and then moved back to Adelaide.  Most recently, he has worked as a valet chauffeur at the Adelaide Casino.

15. I turn now to Mr Kristensen’s personal life. Mr Kristensen described himself as quite immature and naïve when he was young.  When he was about 19 or 20 years of age, he met a minor.  She was aged only 13.  Initially, he had thought she was older, but in due course it became clear to him that she was in fact only 13.  They became friends and eventually Mr Kristensen had sexual relations on some eleven occasions with her. Mr Kristensen said they had known one another for some six months to a year before their relationship became sexual.

16. Mr Kristensen said he thought he was in love and did not have insight into his behaviour at the time. Mr Kristensen also said that when the minor’s father found out, he immediately reported the matter to police. Mr Kristensen was then charged with an offence of having sexual intercourse with a minor.  As I understand matters, Mr Kristensen believes the father reported the matter to police because he was hostile to Mr Kristensen’s Asian ethnicity. Once he was charged, the relationship ended immediately, Mr Kristensen said.

17. Mr Kristensen has had a number of relationships with adults, and he has two children from two different relationships.  These two relationships are over, but he remains on good terms with the mothers.  They wrote letters of support that were received into evidence: Exhibits A4 and A8.   

18. I turn now to Mr Kristensen’s criminal record. That record was before me in Exhibit R1 at pp 33 to 34.  Mr Kristensen’s criminal record discloses that he has two convictions going back 29 and 30 years respectively for larceny before the Children’s Court. On both occasions he was found guilty but no conviction was recorded.  In respect of the first offence he was discharged without penalty; in respect of the second, he was fined $100. I do not believe that these offences, given their age and the fact that they were committed while Mr Kristensen was still a minor, have any significant bearing on my decision and I need not deal with them further.

19. Once in 1995, and on multiple occasions in 1997, Mr Kristensen was found guilty of various offences set out in the criminal record.  On each occasion, he was convicted in the Magistrates Court (either sitting in Adelaide or Christies Beach) and was fined. These offences are now 25 years old, and are of a minor nature, and again I do not think I need to refer to them.  Whilst I am obliged to take them into account, they do not tip the balance against Mr Kristensen in my opinion.

20. In 1998, Mr Kristensen was sentenced to 12 months’ imprisonment with a non-parole period of six months, which was suspended entirely for two years with a bond of $500. This sentence related to the acts of unlawful sexual intercourse with the minor to which I have earlier referred. 

21. The criminal record discloses no convictions for the next two-and-a-half years.  From 2001 to 2016, Mr Kristensen committed a range of driving offences including driving under disqualification or suspension. He was convicted in relation to all offences and received fines except in relation to the offence of driving under disqualification or suspension where he received a suspended sentence of 14 days’ imprisonment. These offences are important as they evidence in my opinion a defiant attitude towards the law. Mr Kristensen at this stage was in his mid to late 20s, and he decided repeatedly to ignore those regulations governing conduct on the road. The offence of driving at dangerous speed is particularly serious in my opinion because it does involve, self-evidently, a danger to other community members.

22. From 2019 onwards, there are a number of drug-possession offences. There are also convictions for failing to comply with various bail agreements. On two occasions this resulted in a conviction, but a discharge without penalty, and on one occasion it involved a fine of $300 only. The disregarding of a bail agreement is serious: once again it points to defiance or unwillingness to comply with the law. The possession of a controlled drug is important because it indicates a decision to participate in the very real social evil of drugs as a consumer, which constitutes strongly antisocial behaviour.

23. On 26 March 2019, Mr Kristensen was also convicted and fined $350 for having possession of a prohibited weapon. That is a serious matter.  Once again there is defiance here towards the community’s laws and expectations.

24. There are, in Mr Kristensen’s criminal record, a further number of driving offences as well as possession offences which I need not detail but I have had regard to them all.

25. I now come to the important offence for which Mr Kristensen was sentenced to a term of three years and seven months.  He was sentenced on 28 April 2020 in the District Court of South Australia. I should add that Mr Kristensen candidly admitted before me that he had a drug-dependence problem at this time. He smoked marijuana and had experimented with both LSD and ecstasy (although he said it was not a consistent habit) but most importantly he had become addicted to methylamphetamine or “ice”.  I accept that evidence.

26. I have had regard to the sentencing remarks and adopt them for the purposes of my review: see Exhibit R1, pp35ff.  The sentencing Court found the offending involved offences of trafficking three different batches of controlled drugs (namely, methylamphetamine and cannabis) in the course of an organised commercial activity between 13 July 2018 and 16 August 2018; that is to say, over the course of approximately a month.  

27. The Court referred to the circumstances in which the three batches of controlled drugs were found and what they comprised. The first batch consisted of small amounts of cannabis and to amounts of substance containing methylamphetamine.  The second batch consisted of half “a pound” of cannabis which was agreed to be sold for $1350. And the third batch comprised 1.75 g of methamphetamine which was sold for $375.

28. The Court referred to the offending as an organised commercial activity over a four-week period as revealed by text messages and diary entries. Mr Kristensen pleaded guilty and thereby became entitled to receive a discount of up to 40%.  The Court then referred in some detail to a variety of matters that were called up for sentencing from the Magistrates Court.  I have considered what the Court said about these matters, but I need not recapitulate the Court’s observations.

29. The Court referred also to the circumstances attending the offending; namely that at the relevant time, Mr Kristensen’s long-term de facto relationship had broken down in painful circumstances, and that his hours of employment had been reduced (he had been working as a chauffeur at the Adelaide Casino).  The Court found that he had come to rely increasingly upon methylamphetamine in the face of his personal problems. The Court appeared to accept that Mr Kristensen had commenced trafficking in methylamphetamine and cannabis to defray the cost of his own increasingly significant drug addiction.

30. The Court made it clear that whilst there had been some rehabilitative efforts made, Mr Kristensen had recently been found in possession of between two and four grams of methylamphetamine. The court noted that there was still much work to be done in respect of Mr Kristensen’s drug rehabilitation and that his continued use of illicit drugs increased his risk of reoffending.

31. The sentencing Court clearly found that the offending was serious. The Court specifically found that this offending involved a more extensive and profitable enterprise than that of a low-level street dealer or of a person trafficking drugs purely to support his or her own habit. In all these circumstances, the Court would have imposed a sentence of six years but reduced it to three years and seven months given the guilty plea. A further total period of 42 days (comprising two cumulative sentences of 21 days each) was added for the reasons detailed in the Court’s reasons. The end result was a sentence of three years, eight months and twelve days with a non-parole period of two years.

32. I reiterate that the Court found the nature of the drug trafficking to be serious and protracted. The Court noted its guarded view as to Mr Kristensen’s prospects of rehabilitation and the real risk of reoffending, and found that there was no good reason to suspend the sentence. And for the same reason, the Court decided that a home detention order would not be appropriate.

    DIRECTION 90

33. I now turn to Direction 90.  As I have indicated, I must apply the Direction when addressing the question of whether there is another reason for the cancellation decision to be revoked. Usually in these matters, by way of prefatory remarks, I extract certain paragraphs from my own decision in Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119. I do so again:

    32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34.  First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36.  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight “generally” to primary considerations over other considerations.

1. I turn now to apply the Direction.  I must have regard to the protection of the Australian community from criminal or other serious conduct as the first primary consideration. I note the principles that appear in subparagraph (1) of paragraph 8.1. I take these into account but I shall not set them out in these reasons. Under subparagraph (2), I must give consideration to the nature and seriousness of the noncitizen’s conduct to date and to the risks to the Australian community should he or she commit further offences or engage in other serious conduct.

2. I now turn to consider the nature and seriousness of Mr Kristensen’s conduct to date. I am required to have regard to a number of matters specified in subparagraphs (a) to (g) of paragraph 8.1.1(1).  I am required to regard the offence of unlawful sexual intercourse very seriously.  It involved a sexual crime against a minor. I also regard the drug-trafficking offence as very serious. I note that paragraph (a) is not exhaustive of the categories of very serious offending.

3. So far as the offence of unlawful sexual intercourse is concerned, I did not accept Mr Kristensen’s evidence that the relationship blossomed, so to speak, when he was naïve and he and his victim genuinely had feelings for one another.  This explanation, given now, seems to me to demonstrate an almost complete lack of insight into the nature of the offending.  It is true that Mr Kristensen, when he had sexual intercourse with the minor, did not coerce his victim as such, but given her age, the child was clearly in no position to consent to the acts of sexual intercourse in question.  I regard the acts of sexual intercourse as the serious abuse of a minor by an adult, albeit a young and somewhat immature adult. I regard that behaviour very seriously.  Mr Kristensen knew her age before they had intercourse.

4. So far as the drug-trafficking is concerned, I regard this as very serious offending indeed. It is one thing to consume drugs for one’s own pleasure or in satisfaction of an addiction; it is a serious escalation to involve oneself in the sale of drugs to others in society. Of particular importance in this context is the finding by the Court that the trafficking was not engaged in merely to support a personal drug habit.  It had begun that way, according to the Court, but the Court found explicitly that the amounts trafficked exceeded the amount need to be trafficked to support a personal habit. 

5. The use of illicit drugs in the community may rightly be seen, in my opinion, as one of the prime challenges Australia presently faces in preserving a well-ordered and functioning society. Drug addiction attacks a well-ordered society directly.  A person’s addiction is disruptive to households and families. It leads to the commission of crimes. It frequently imposes an unreasonable burden on health services whose scarce resources are diverted unnecessarily to attending to an addict when he or she should not be relying on those services for that reason. All in all, those who participate in drug trafficking directly attack the wellbeing of society.   

6. I regard the possession offences, the breach of bail offences, and the traffic offences as serious. All in all, as I have said, these indicate that Mr Kristensen had a defiant attitude towards his legal obligations. He was not at liberty to consume illicit drugs or to ignore rules that regulate conduct on the road or, self-evidently, to ignore bail conditions. 

7. I have had regard to the sentence imposed in each case as required by subparagraph (c).  The sentences imposed in relation to the drug-trafficking offences and the offence of unlawful sexual intercourse were heavy ones. 

8. I am required by subparagraph (d) to take into account the frequency of the offending and whether there is a trend of increasing seriousness. There have clearly been many offences committed by Mr Kristensen, and there is clearly a trend of increasing seriousness in that possession of drugs has led to trafficking in drugs, which is a very serious matter indeed.

9. I now turn to consider the risk to the Australian community. Subparagraph (1) of paragraph 8.1.2 requires decision-makers to have regard to the view that the Australian community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increases. I am to have regard to the principle that some conduct and the harm it would cause if it were repeated is so serious that any risk of its recurrence may be unacceptable. I bear that principle in mind.

10. Subparagraph (2) requires me, when assessing risk, to have regard to two matters “cumulatively”. The first concerns the nature of the harm should Mr Kristensen engage in further criminal or other serious conduct.  The second concerns the likelihood of his so doing, and I am to take into account the matters referred to in subparagraphs (i) and (ii).

11. I regard the principal harms to the Australian community in this case as involving the supply of drugs, including the highly addictive drug of “ice”, and the repetition of the offence of unlawful sexual intercourse. There are other harms that would be caused to the community if there were repetition of the less serious offences. For example, a repeat of dangerous driving has a potential to harm the Australian community- I am fully cognisant of that.  But it is right, in my view, to focus on these two particular harms.

12. I regard the harm in respect of drug trafficking as very serious indeed.  People who supply drugs to others do so in circumstances where they take no responsibility for the use of that drug by the recipient. Nor do they take any responsibility for the quality of the drug supplied. Of course, an illicit drug is of its nature noxious, but a drug may have been adulterated so as to pose a special risk to the consumer.  Moreover, a person who supplies ice to another does not know whether the consumer of the drug will fall seriously ill or worse.  Rather, the trafficker seeks, simply, to profit from the miserable addiction of the drug-taker.  As I have made clear, my view is that the harm threatened to the Australian community in this regard is extremely serious. 

13. The harm resulting from the offence of unlawful sexual intercourse with a minor, if it were to be repeated, would be extremely serious as well.  As I made clear during the course of the hearing, it is, in my opinion, meaningless to speak of a 13 or 14-year-old person consenting to acts of intercourse with an adult.  Sexual intercourse in these circumstances constitutes a form of serious abuse of a minor with potentially serious outcomes for the psychological well-being and growth of the victim in the future.  There was a significant age gap between Mr Kristensen and his victim.

14. I must consider the risk of this offending recurring. So far as the sexual offending is concerned, Mr Ellison indicated that the respondent’s view was that there was no real risk of a recurrence.  Mr Kristensen does not seem to me to have developed appropriate insight into his behaviour; but it is true to say that the behaviour is more than two decades old now and it can also be rightly said that it belongs to a different stage of his life. I am not prepared to find that it would definitely not occur again, however.  Although he was a young man at the time, Mr Kristensen crossed the threshold of sexual offending by having intercourse with a child and still fails to recognise it as a form of serious abuse.  In these circumstances, there cannot be said to be no risk of recidivism. Nevertheless, I regard the risk of recidivism as low.  There is no suggestion of sexual abuse of children or the sexual abuse of adults after this conviction.  The statements provided in support in this case generally attest to positive character attributes.  All in all, I regard the risk of recidivism in this regard as low.

15. So far as the drug trafficking offence is concerned, I also regard the risk of recidivism as low.  I have taken into account the conclusions in the psychological report appearing at Exhibit R1, pp 130ff as I am bound to do; but I note the criticisms made by the respondent of Mr Kristensen’s disclosures to the psychologist.  In respect of the assessment I must make, I note that Mr Kristensen’s gaoling for an extended period of time in relation to his drug-trafficking was his first experience of incarceration on an extended basis.  I believe it has had an impressive effect upon him.  It has now been followed by a period in immigration detention, and Mr Kristensen has had to face directly the very real prospect of deportation to Denmark.  I do not doubt that the prospect of future gaol terms and immigration detention are very powerful deterrents in Mr Kristensen’s case. 

16. I believe also that he genuinely wishes to care for his two minor children in Australia and that physical separation from them will be particularly difficult for him.  It provides, therefore, a powerful incentive to stay away from drugs. He will know that on the last occasion he commenced the use of drugs to alleviate personal anguish, and it led him to begin trafficking. He has acquired that insight into his behaviour, I believe.  I accept further that random urine tests in gaol have not detected methylamphetamine and so the physical dependence on this drug has apparently been broken.  I do believe that that is an important matter, as this pernicious drug can be acquired in gaol by those who wish to use it.  But, of course, drug dependence is more than a purely physical addiction: it has complex psychological dimensions.  In that regard, an important protective factor looking forward is, in my opinion, the offer of FIFO-welder work from his second adoptive father (see Exhibit A7). Mr Kristensen gave evidence that he wishes to prioritise his daughters’ welfare and that may mean he will not take up the offer, but it is there if needed, and will provide important income support for him if he cannot find other employment.

17. Having heard Mr Kristensen’s evidence, I do find that he has a genuine commitment to his ongoing rehabilitation and, importantly, to his daughters’ future. He is determined to stay away from illicit drugs, he said, and in particular ice.  I believe he appreciates fully the potential consequences of reoffending, even if the reoffending took the form of possession rather than trafficking; namely, gaol and likely deportation.

18. There is no family violence consideration for me to address under paragraph 8.2.

19. I must have regard to the best interests of minor children in Australia under paragraph 8.3. In this connection, I regard the interests of Mr Kristensen’s two daughters as weighing substantially in his favour. The older of the two children, who is now 17, is in a particularly difficult situation. She is living with her biological mother who gave evidence before me.  The mother gave evidence that she has struggled to cope meaningfully with the raising of her daughter because of her own mental-health concerns.  I accept the evidence given that this child has begun to harm herself or threaten harm to herself and has had to seek assistance for her mental health.  This is supported by documentary evidence before me: Exhibit R1, pp 184-5. 

20. The deportation of this child’s biological father would be a serious blow to her in a context where her mother is unable to provide her with an appropriate level of parenting support.  I accept that she is only less than a year now from adulthood, and the Direction makes it clear that I should have regard to that fact: see paragraph 8.4(4)(b).  But a decision to affirm the decision under review would affect her immediately, that is, while she is still a minor; and, in addition, her ongoing interests as a young adult need to be taken account under the rubric of other considerations under paragraph 9, even if not as a primary consideration.  All in all, I formed the view that Mr Kristensen does intend to fulfil a meaningful parental role in relation to his older daughter and that there is an absence of any meaningful male parental role in the child’s life at the moment. The daughter’s mother gave evidence that a school teacher presently offers guidance but, self-evidently, that does not constitute the fulfilment of a male parental role.

21. I also accept that the younger daughter’s interests favour revocation of the cancellation decision.  This younger daughter is Mr Kristensen’s child from another ex-partner.  I accept that there are others in this child’s life who are able to fulfil a parental role; but it remains the case that the presence of a biological father will often remain, generally speaking, important to the growth and psychological development of his children.

22. I regard the interests of the minor children here as weighing substantially in Mr Kristensen’s favour.  In reaching this conclusion, I have taken into account the views of the children which were before me (Exhibit A3 and A5); but I should also say that I have taken into account the undesirability of Mr Kristensen resuming a role in their lives were he to resume a drug habit. That will introduce a chaotic and stressful dimension to their lives.  I have decided that the risk of this is low, bit it is not zero, and I bear it in mind.

23. I must have regard to the expectations of the Australian community under paragraph 8.4. These count substantially against Mr Kristensen. “As a norm”, the Australian community would not expect me to allow Mr Kristensen to remain in Australia having regard to his drug trafficking offence, amongst other offences. I acknowledge that subparagraph (2) directs me to have regard to the commission of the sexual crime against the minor as one which invokes an expectation of deportation: see paragraph 8.4(2)(c).  I note that the expectations apply whether or not the noncitizen poses a measurable risk of causing physical harm in the community, and I note further that I am not to assess the expectations for myself but am required to accept them as  expressed  in paragraph 8.4. I bear all this in mind.

24. Paragraph 9 directs me to have regard to a number of so-called “other” considerations.  These are non-exhaustively listed in paragraphs (a) to (d) of paragraph 9(1).  No non-refoulement obligations arise in respect of Denmark.  I do not have any evidence of the impact of my decision on victims of the offending, and so I treat this as a neutral factor.

25. Mr Kristensen emphasised that he believed he would face significant impediments if he were forced to resettle in Denmark: see subparagraph (b).  He emphasised that he no longer speaks Danish. I bear in mind, however, that Danish was Mr Kristensen’s mother tongue until he migrated to Australia in 1989.  I believe that he would recover his spoken Danish relatively quickly if he returned. I accept that he has no present relationship or contact with his first adoptive father and that it would be speculative to assume that his first adoptive father would, after so many years, necessarily want to have too much to do with him, particularly if he were to know the background to Mr Kristensen’s deportation.

26. I do believe that the absence of Danish would be an impediment, as would the relative social isolation of Mr Kristensen in Denmark, but I do not believe that these impediments would last a particularly long time. Mr Kristensen is able-bodied with no physical ailments to speak of and would be able to apply the various skills he has acquired in Australia to the workplace in Denmark. Accordingly I attach some, but limited, weight to the consideration in paragraph 9(1)(b) in Mr Kristensen’s favour.

27. Mr Kristensen has links to the Australian community.  I attach some, but again limited, weight to his relationship with his present partner.  Although she gave a statement (Exhibit R2) and evidence that she wishes to resume her relationship with Mr Kristensen, that statement comes after a period of separation, which she acknowledges in her statement. I believe that in her own mind she remains committed to the relationship, but whether it will ultimately develop into a committed marriage, or marriage-like, relationship I cannot say at the moment.   More generally, I accept that Mr Kristensen has lived the vast majority of his life in Australia.  I accept also that this factor, which weighs in his favour, does need to be tempered by the lengthy criminal record Mr Kristensen has accumulated: he commenced offending whilst still a minor in Australia. 

28. I accept also that Mr Kristensen has a real desire to contribute meaningfully to his daughters’ upbringing and that this desire is fully supported by the biological mothers of the two children involved, who have provided supporting statements. It does seem to me that Mr Kristensen’s own interest in recommencing a life oriented towards assisting his daughters is a matter I should take into account in his favour. 

    WEIGHING THE CONSIDERATIONS

29. I turn now to weigh the various considerations I have identified and discussed.  I regard the sexual abuse of the minor as a very serious matter, although I have also found in my review, consistently with Mr Ellison’s appropriate concession, that the abuse of the minor occurred decades ago at a different stage in Mr Kristensen’s life, whatever lack of insight he continues to have.

30. I am particularly conscious of the harm caused by drugs in the Australian community.  I have already made my view clear that drug-trafficking poses a particular threat to Australian society.   It is a very serious matter indeed.   I do take into account, however, the risk profile for this particular applicant and the fact that the trafficking in question began in order to support a drug habit, although it expanded beyond that, as the Court found.  That habit no longer exists as a physical dependence.

31. But I also recognise that the low risk I have assessed is something to which I should have regard “cumulatively”; that is, together with the nature of harm to the community on the assumption that Mr Kristensen reoffends.  Moreover, low risk does not mean no risk.  I bear all this in mind.  I have borne in mind the community-expectations consideration.

32. I do regard the interests of the older daughter as of real importance (whether as a primary consideration or as another consideration under paragraph 9 once she attains her majority in a short time) as I do the interests of the younger daughter.  I certainly accept that if there were a substantial risk of Mr Kristensen reverting to drugs, it would be better if these father-daughter relationships were severed now whatever the immediate adverse consequences for the children, because Mr Kristensen would be unfit to resume a parenting role and should not be permitted to blight and disrupt their lives through drug misuse.  In my opinion, however, this risk is low. 

33. It remains a plain fact that children are very often the victims of the poor decisions their parents make.  The children in question here (in particular the older child) have suffered markedly from the absence of their father, and the older child is at real risk, it would appear, of psychological harm given the prospect of her father’s deportation.  I repeat that I have found that this child’s mother is unable to fulfil a truly supportive parenting role given her own mental-health concerns.

34. It is important for children to develop healthily where possible.  That includes healthy psychological growth, enabling children to thrive as they into young adulthood. I do believe that the absence of Mr Kristensen would impinge directly on the healthy development of the two children.  That remains a particularly important factor in this case.

35. Finally, I must also have regard to the other considerations I have identified which favour Mr Kristensen.

36. In this difficult case, and having weighed the various considerations, I have decided that the correct or preferable decision on the evidence before me favours revocation of the cancellation decision so as to allow Mr Kristensen to remain in Australia.  This decision has been influenced greatly by the interests of the minor children I have identified.

1. Having reached that conclusion, I return now to the language of the relevant statutory provision. I have concluded, on my review, that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii).

   DECISION

2. I shall set aside the decision under review and substitute a decision that the cancellation of Mr Kristensen’s visa be revoked. 

   ………[sgnd]…………

   Associate

   Dated: 11 November 2022

Date of hearing:	5 and 6 October 2022
Advocate for the Applicant:	Self-Represented
Advocate for the Respondent:	Tom Ellison Australian Government Solicitor