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

[2021] AATA 1365

Kura and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1365 (18 May 2021)

Division:GENERAL DIVISION

File Number:          2019/6264

Re:Poona Sheldon Jordan Kura

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date:18 May 2021

Place:Melbourne

The Tribunal affirms the decision under review.

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

Senior Member A. Nikolic AM CSC

CATCHWORDS
MIGRATION

– Mandatory visa cancellation – citizen of New Zealand – Class TY Special Category Subclass 444 (Temporary) Visa – failure to pass good character test – extensive criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 90 applied – decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)

CASES
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Bushell v Repatriation Commission (1992) 175 CLR 408
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Hughes v The Queen (2017) 263 CLR 338
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478
Kura and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5428
Maxwell v R [1996] 184 CLR 501
Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358  
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
Say v Administrative Appeals Tribunal [2020] FCA 1489
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545

Viane v Minister for Immigration and Border Protection (2018) 162 ALD 13

SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

Sentencing Advisory Council, Imprisonment < FOR DECISION

Senior Member A. Nikolic AM CSC

18 May 2021

INTRODUCTION

1. The Applicant has asked the Tribunal to review the decision by a delegate of the Minister not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) Visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act).

2. The hearing was held in Melbourne on 3 and 4 May 2021. The Applicant appeared in person and was represented by Mr Dushan Nikolic, a solicitor from Carina Ford Lawyers. The Minister was represented by Mr Christopher Orchard, a solicitor from Sparke Helmore Lawyers.

3. For the following reasons the Tribunal affirms the decision under review.

   BACKGROUND

4. The Applicant was born in New Zealand and is currently 30 years of age. He relocated to Australia with his parents in August 2000 when he was almost ten years of age. Apart from three relatively brief departures he has lived in Australia continuously for the last twenty years.[1]

   [1] Exhibit R1, 81.

5. The Applicant completed Year 8[2] and refers to employment between 2009 and 2013 as a meatworker, labourer, and with the rail industry. He has been in a relationship with the same partner since 2009, with whom he has four minor children between three and nine years of age.[3] The Applicant’s parents, two siblings, and other relatives reside in Australia.

   [2] Ibid, 379.

   [3] Ibid, 118-121.

6. The evidence discloses the Applicant first came to the attention of police for violent conduct in 2008.[4] His criminal history encompasses 50 findings of guilt between 31 January 2011 and 5 April 2017. This includes violent offences, drug possession, carjacking, dishonesty, and driving offences.[5] His most serious offences were in 2016 and 2017 as follows:

   (a)On 28 July 2016 he was convicted of possessing heroin and methylamphetamine, theft of a motor vehicle, three charges of failing to answer bail, committing an indictable offence while on bail, and other dishonesty offences. He was convicted and sentenced to a 12-month Community Correction Order (CCO) and 120 hours of unpaid community work;

   (b)The Applicant contravened the CCO by committing further crimes within months of his previous sentencing. On 5 April 2017 he was convicted of robbery, carjacking, burglary, two charges of assaulting an emergency worker on duty, failing to stop his vehicle after an accident, dealing with property suspected of being the proceeds of crime, committing an indictable offence whilst on bail, unlicensed driving, 17 counts of Go equipped to steal / cheat, and other dishonesty offences.  He received several sentences of up to 18 months’ imprisonment for this offending, had his licence cancelled, and was disqualified from driving for five years.[6]

   [4] Ibid 977.

   [5] Ibid, 25-28; Exhibit R3.

   [6] Exhibit R3.

7. On 21 December 2017 the Applicant’s visa was mandatorily cancelled (cancellation decision),[7] because he had a ‘substantial criminal record’ within the meaning of s 501(6)(a) of the Act. He was invited to make representations about revoking the cancellation decision and did so on 12 February 2018.[8] Between April and June 2019 further correspondence passed between the Respondent and Applicant about information that had come the Department’s attention.[9]

   [7] Exhibit R1, 82-86.

   [8] Ibid, 87-139; 166.

   [9] Ibid, 140-153.

8. On 23 September 2019 a delegate of the Minister declined to revoke the cancellation decision, determining that the Applicant did not pass the character test and there was not ‘another reason’ to do so (non-revocation decision). The Applicant was notified of the non-revocation decision on 24 September 2019.[10]

   [10] Ibid, 7-8.

9. On 2 October 2019 the Applicant asked the Tribunal to review the non-revocation decision.[11]

   [11] Ibid, 5.

10. On 17 December 2019 the Tribunal, differently constituted, affirmed the decision.[12]

    [12] Kura and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5428.

11. The Applicant sought judicial review in the Federal Court of Australia, and, in October 2020, Kerr J ordered the Tribunal’s decision be set aside, which gives rise to these proceedings.[13]

    [13] Kura v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1478.

12. In early 2020 the Applicant completed his prison sentence and was immediately taken into immigration detention, where he has since remained.[14]

    [14] Applicant’s Statement of Facts, Issues and Contentions (ASFIC), 1 [2].

    PROCEDURAL HISTORY

13. Case Management Directions Hearings were conducted on 15 January 2021 and 24 February 2021. Scheduling orders were made, and a hearing listed for 22-24 March 2021. On 10 March 2021 the Applicant secured legal representation and requested that the hearing be re-scheduled. This was approved and the hearing was re-listed for 3 and 4 May 2021 with new scheduling orders.

    LEGISLATIVE FRAMEWORK

14. Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA of the Act.

15. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.

16. The ‘character test’ is defined in s 501(6) of the Act, with s 501(6)(a) of the Act stating:

    (6)      For the purposes of this section, a person does not pass the          character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)); or …

17. Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

18. Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg. 2.52 of the Migration Regulations 1994 (Cth).

19. Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations 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 decision should be revoked.

    Direction 90

20. The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. The Direction must be applied by all persons, except for the Minister acting personally, who make decisions under the Act, such as the Minister’s delegates and the Tribunal.[15] On 8 March 2021, the Minister signed Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction). The Direction commenced on 15 April 2021 and revoked the previous Direction 79 on the same date.[16] Both parties submitted that the Tribunal is bound to follow Direction 90.[17] 

    [15] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).

    [16] Direction, cl 2-3.

    [17] ASFIC, 4 [23]; Respondent’s Statement of Facts, Issues and Contentions (RSFIC), 5 [18].

21. The Tribunal is not constrained to the evidence before the original decision-maker and must engage with the material currently before it.[18] There are no accrued rights under the now-revoked Direction 79 and, pursuant to s 499 of the Act, the Tribunal finds it is bound to apply Direction 90 in these reasons.

    [18] Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J).

    Direction 90

22. The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non­citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non­citizens who have lived in the Australian community for most of their life, or from a very young age.

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

23. Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision maker must take into account the considerations identified in clauses 8 and 9, where relevant to the decision.

24. Clause 8 of the Direction identifies the following as primary considerations:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)Whether the conduct engaged in constituted family violence;

    (c)The best interests of minor children in Australia;

    (d)Expectations of the Australian community.

25. Clause 9 of the Direction identifies a non-exhaustive list of other considerations:

    (a)International non-refoulement obligations;

    (b)Extent of impediments if removed;

    (c)Impact on victims;

    (d)Links to the Australian community, including:

    (i)Strength, nature and duration of ties to Australia;

    (ii)Impact on Australian business interests.

26. Clause 7(1) provides that, when taking the relevant considerations into account, ‘Information and evidence from independent and authoritative sources should be given appropriate weight.’

27. Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations.’  That does not preclude the Tribunal, however, based on the specific circumstances of each case, to give an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[19]

    [19] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).

28. Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop[20] at [57]:

    …the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…

    [20] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

29. Because of his April 2017 convictions and imposition of a sentence exceeding the threshold statutory period of 12 months, the Applicant does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.

    ISSUE TO BE RESOLVED

30. It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the cancellation decision should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court (FCAFC) in Viane v Minister for Immigration and Border Protection:[21]

    There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.

    EVIDENCE

    [21] (2018) 162 ALD 13, [64] (Colvin J).

    Documentary evidence and witnesses

31. The Tribunal has considered the Applicant’s and Respondent’s Statements of Facts, Issues and Contentions. Documents tendered into evidence at the hearing were:

    (a)G-documents collectively numbering 1009 pages in two volumes;[22]

    [22] Exhibit R1.

    (b)Transcripts of the Applicant’s evidence and that of his partner at the first hearing on 5 December 2019;[23]

    [23] Exhibit R2.

    (c)Ten-page VicRoads summary produced under summons;[24]

    [24] Exhibit R3.

    (d)Applicant’s two-page statement numbering 11 paragraphs dated 8 April 2021, and nine-page statement dated 2 December 2019 numbering 74 paragraphs;[25]

    (e)A two-page unsigned and undated statement of the Applicant’s brother numbering 14 paragraphs;[26]

    (f)Report of consulting psychologist Mr Warren Simmons dated 19 April 2021 numbering seven pages, with accompanying letter of instruction dated 13 April 2021;[27]

    (g)A two-page statement of the Applicant’s mother numbering 14 paragraphs dated 9 April 2021;[28]

    (h)A two-page statement of the Applicant’s father numbering 15 paragraphs dated 9 April 2021;[29]

    (i)A three-page statement of the Applicant’s partner numbering 26 paragraphs dated 9 April 2021, and an undated, unsigned five-page statement numbering 34 paragraphs, which was lodged with the Tribunal on 2 December 2019;[30]

    (j)Newspaper article relating to drug smuggling in prisons dated 15 November 2020, along with four graphs relating to positive drug tests in Victorian prisons between 2016-2017 and 2019-2020;[31] and

    (k)A 12-page bundle of medical records dated between May 2016 and December 2017, relating to the health of the Applicant’s parents.[32]

    [25] Exhibit A1.

    [26] Exhibit A2.

    [27] Exhibit A3.

    [28] Exhibit A4.

    [29] Exhibit A5.

    [30] Exhibit A6.

    [31] Exhibit A7; Chris Vedelago ‘Prisons struggle to swat drug-smuggling drones’, The Age, 15 November 2020.

    [32] Exhibit A8.

32. The Applicant gave oral evidence at the hearing. Other witnesses were his partner, parents, brother, and psychologist Mr Warren Simmons.

    National Criminal History and sentencing remarks

33. The Applicant does not dispute the accuracy of his criminal history or the transcript from the Dandenong Magistrates’ Court dated 5 April 2017.

    Applicant’s evidence

34. The Applicant adopted his statements dated 8 April 2021, 2 December 2019, and an earlier February 2018 statement[33] as true and correct.

    [33] Exhibit R1, 88-95.

    Early life

35. The Applicant came to Australia in 2000 with his parents when he was nine years old and has lived with them continuously until being imprisoned. His elder sister lives in Australia with her four children and, under a cultural arrangement, his sister’s first child was adopted by his parents. The Applicant was raised with this child and considers him a brother instead of a nephew. The Tribunal will refer to this relative as the Applicant’s brother.

36. The Applicant completed Year 8 before starting work to help his family. The relationship with his current partner began in early 2009 and they have always lived at his parent’s house. The Applicant last returned to New Zealand in 2007 to visit a cousin who now lives in Australia.[34] He claimed to have no family remaining in New Zealand.

    [34] Ibid, 155.

    Drug use and offending

37. The Applicant agreed that his drug and alcohol use commenced in his teenage years and continued at varying levels of intensity since. He referred to negative peers, some of whom he met at school and others at pubs, clubs, and through mutual friends. The Applicant said he no longer wanted anything ‘to do with these people’ and claimed not to have been in contact with them since his arrest.

1. The Applicant recalled that in early 2015 his use of heroin and methylamphetamine spiralled ‘out of control.’ He took drugs daily to ‘block out and forget about problems,’ referring to several factors, including his employment ‘slowing down’ and his father becoming ill.

2. Mr Orchard asked the Applicant about several convictions for car thefts and the submission during sentencing that the Applicant would plead guilty to these, but not disclose who stole the car in his possession when arrested.[35] This was a persistent line of questioning, characterised by extended periods of silence and unresponsiveness from the Applicant. He eventually claimed to have pleaded guilty to one car theft because of fears for his life from the person who initially stole it. During re-examination the Applicant said he did not want to be labelled a ‘rat’ by giving up the names of co-offenders, because he could be harmed in prison. These submissions were not previously made to the court, or during the visa cancellation process, or at the first Tribunal hearing. The Applicant agreed no threats were made but claimed there would have been if he divulged the offender’s details. It was put by Mr Orchard that the Applicant’s non-disclosure arose from ‘lingering loyalties’ to co-offenders, which the Applicant disagreed with.

   [35] Ibid, 42.

3. Mr Orchard asked the Applicant several questions about a stolen car he claimed in court to have purchased from an unknown person for $4,000.[36] The Applicant said he purchased the car from a person called ‘AJ’ but had no other details. When asked why he had not previously disclosed this information to the police and courts rather than claim the person was unknown, the Applicant responded: ‘I don’t know why – I should have.’ When pressed about why he should have, the Applicant provided no answer. When asked if he stole a Porsche that he received a conviction for, the Applicant responded: ‘I pleaded guilty to it.’ When asked if he stole a $200,000 Mercedes for which he was convicted, the Applicant responded: ‘I was charged for it.’ When asked if he stole an Australia Post vehicle, the Applicant responded: ‘I pleaded guilty to it.’ When asked by Mr Orchard why he pleaded guilty to some crimes he claimed not to have committed, the Applicant responded: ‘I don’t have an answer for that.’ When put by Mr Orchard that the Applicant’s conduct in pleading guilty to things he purportedly did not do was indicative of someone not committed to their family, the Applicant disagreed, stating: ‘I was part of it, that’s why I pleaded guilty’.

   [36] Ibid, 33 [30].

4. A video was played during the hearing showing helicopter footage of the Applicant’s attempted evasion of arrest in a stolen Mercedes SUV. The Applicant agreed that his co-accused exited the car and surrendered to police, while he attempted to escape by ramming a police car, forcing two police officers to jump out of the way, and then engaged in a high-speed chase along busy roads. He said that he ‘panicked’ when blocked in by a police vehicle, stating his conduct was ‘stupid’.

5. The Applicant was taken through his evidence at the previous hearing about dealing drugs to support his addiction. No objection was raised to this line of questioning. He claimed to have done so while ‘using heavy’ in 2015 and earned ‘maybe a grand’ each week. He claimed to have spent approximately half of these earnings on his own drug consumption.

6. The Applicant agreed with Mr Orchard’s proposition that in 2015 his partner discovered his drug use and gave him an ultimatum that he either stopped using drugs or she would leave him and take their children. The Applicant agreed that notwithstanding this ultimatum, his drug use and offending continued.

   Remorse

7. The Applicant said he had now been separated from his family for over three years. When asked by Mr Nikolic to reflect on how his past crimes made him feel, the Applicant said he was ‘not proud of it’ and was thankful no one was killed. He considered prison a ‘blessing’ and felt he should have been imprisoned much earlier by the courts. He explained that imprisonment had enabled him to reflect on his past behaviour, stop using drugs, and become a better person who could now ‘walk away from trouble.’

8. The Applicant said he missed his youngest child’s birth due to his imprisonment, which he found very difficult to deal with. He was reminded of the consequences of his offending whenever he missed things like birthdays and Father’s Day. He said that the interests of his children now motivated him to remain drug-free and law-abiding because he never wants to be separated from them again. 

   Conduct in custodial environments

9. The Applicant said he experienced a period of drug withdrawal after commencing his sentence but managed to remain abstinent despite the ready availability of drugs. He had ‘never felt better’ since. The Applicant said he had not failed a drug test or been involved in any incidents while in custody. He was permitted to occupy lodge accommodation and work as billet, which were privileges recognising good behaviour.

   Rehabilitation

10. The Applicant said the drug and alcohol program he completed helped him to ‘open up’ and ‘talk in front of people’ rather than ‘bottle things up.’ He led preparations for Waitangi Day in 2018 and learned how to take his anger out while performing ‘the Haka.’

11. In response to questions from Mr Orchard, the Applicant agreed that his previous court appearances and convictions in 2011, 2012 and 2016 had not been a ‘wake up call,’ and that he failed to reform after past rehabilitative opportunities. This included while on a CCO, where he failed to attend appointments and reoffended while under conditional liberty.  

    Protective factors

12. The Applicant said his family were the most important part of his life and he maintained contact with them through visits and by telephone. His partner works fulltime, cares for their children, and assists his parents. This had been a heavy burden for her in recent years.

13. When asked by the Tribunal about any nieces and nephews, the Applicant said his brother has a four-year-old and one-year old child, and his elder sister has a 16-year-old who he speaks to by telephone. He thought the latter was studying at TAFE but did not know the course being undertaken. In relation to his brother’s children, the Applicant said he was about to enter prison when the older one was born and still imprisoned when the youngest one was born, but claimed to be close to both children.

14. The Applicant referred to his parent’s health issues as a motivating factor, citing his responsibility to help care for them as the eldest son. His father stopped work in 2015 after heart bypass surgery. His mother has also undergone a heart operation. He said these operations were successful and while his father had retired, his mother still works part time.

    Future aspirations

15. The Applicant said if released there is no impediment to his immediate return to work. He would return to his parent’s home and had received an offer of work from a former employer and his brother, who ran his own company. Mr Orchard said the company who previously employed the Applicant prior to 2015 was deregistered in May 2020, but the Applicant thought this employer may have other companies.  

    Consequences of repatriation

16. The Applicant said his family would be heartbroken is he is repatriated to New Zealand. When asked if his partner and children would accompany him if this occurred, the Applicant claimed they had not ‘had a proper talk about it.’ When asked by Mr Nikolic if he had discussed with his parents whether they would move to New Zealand with him, the Applicant responded: ‘Not really – just with my old man…he said if it happens, it happens…I don’t think they’ll go back.’ The Applicant said if his partner and children did return to New Zealand with him, separation from his parents would adversely impact his children, because they had lived with their grandparents for their entire lives.

    Evidence of Applicant’s brother

17. The witness adopted his statement as true and correct. He is a permanent resident of Australia and runs his own ‘concrete construction’ business, which he started about four years ago. He employs two fulltime staff, several casual staff, and is willing to offer the Applicant a fulltime job as part of his ‘labour team.’ He said strict conditions would be applied and the Applicant would only be allowed to move between work and home until he proved himself. When asked why he considered strict supervisory conditions necessary, the witness did not respond directly to the question asked and stated: ‘I know he can change.’

18. In response to questions from Mr Orchard, the witness said he would let the Applicant ‘go out with mates and to the pub’ but this was something he had to earn. When asked what he would do if the Applicant took drugs or reoffended, the witness said he had not ‘thought that far yet,’ but there would be ‘definite repercussions.’ When asked if he would dismiss the Applicant, the witness said he would not, but instead ‘have chats with him and put him in the spotlight’ with their family.

19. The witness has two children aged one and seven, with the eldest going to the same school as some of the Applicant’s children. His partner and the Applicant’s partner coordinate pickup and drop-off arrangements.  The witness described the Applicant as a ‘caring uncle’ to his eldest child prior to being imprisoned, but their youngest child was born while the Applicant was in custody. He has observed the Applicant engage with his own children in the past as a loving father, who is ‘very strict but in a good way.’ He thought there would be an adverse effect on the Applicant’s children if he was returned to New Zealand, particularly because the eldest (nine-year-old) child had been ‘stepping out of line.’

20. The witness thought there would be an adverse impact on their parents if the Applicant was removed. He has no capacity to provide further assistance to his parents if that occurred, because of his work commitments. He said the Applicant’s partner had taken on a significant burden of care in recent years and needed the Applicant to assist her.

21. The witness has not visited the Applicant in custodial settings because he was too busy with work and due to his own past circumstances. He said that he was ‘locked up’ for an eight-month period in 2017, but through rehabilitation, counselling, and community service, had got his life back on track. He had a ‘private talk’ with the Applicant by telephone and stated: ‘from what he’s told me he won’t get on it again,’ which the Tribunal inferred was a reference to drug use. The witness claimed to have warned the Applicant ‘about twenty times’ since 2020 about the consequences of any further drug-taking and offending. He believes the Applicant has changed and is now calmer, remorseful, and ‘well mannered’. He said the Applicant would receive support from their family and ethnic faith community if released, to ensure he did not return to old habits. He believes the Applicant is now more likely to reach out to family members if he experiences stressors.

    Evidence of Applicant’s mother

22. The witness adopted her statement as true and correct. She came to Australia in 2000 and last returned to New Zealand with her husband for about a month in 2016 for a friend’s 60^th birthday. She lives with her husband, daughter-in-law and four grandchildren. Her youngest son and daughter live nearby and both have their own children. The witness said the Applicant’s four children aged three, five, seven and nine have lived in her home since their birth and she has a ‘good’ relationship with them. She looks after them when the Applicant’s partner, who does night shift, goes to work. Three of the four children go to school and all the children attend church on Sundays with her and her husband.

23. The witness said she continues to work as a machine operator on a part-time basis, currently two to three days per week, and expects to make around $300 per week. She previously worked with the same employer for 15 years but retired from fulltime work in 2016 after suffering health issues. She had a ‘heart operation’ in 2016, which was successful, but has also experienced hip problems in the last year. Her health, however, does not stop her from working part time.

24. The witness described her husband’s health as ‘not good.’ He ceased work as a truck driver in 2015 after a ‘bypass’ operation and has since had bilateral knee replacements. The witness said her primary source of income is an $850 per fortnight pension and her husband receives Newstart Allowance pending consideration of his Disability Support Pension application. Her daughter-in-law works full-time and contributes to household expenses. The witness also receives $200 a week from her youngest son who runs his own business.

25. The witness said the Applicant’s children have been adversely affected by his imprisonment. They miss him a lot and look forward to his calls. Prior to COVID-19 restrictions they visited the Applicant in prison but had since maintained their relationship by telephone. The witness does not know if the Applicant’s partner and children would accompany him to New Zealand if he was returned. If that did occur, she felt it would be difficult for the children who had friends in Australia, including at school and church. She had ‘looked after them since birth’ and would miss them. If they remained in Australia, they would be separated from their father and she said there is no father figure to replace him. The witness said the children ‘don’t want to leave Australia.’

26. The witness said she had noticed positive changes in the Applicant during visits and telephone calls in terms of ‘the way he talks,’ and was confident he would not reoffend.     

    Evidence of Applicant’s father

27. The witness adopted his statement as true and correct. He had worked as a meat lumper in an abattoir and as a driver since arriving in Australia. The Applicant helped him with this heavy work as a 16-year-old after leaving school, for which the witness was grateful. Prior to his arrest, the Applicant assisted the family by ‘giving us money and helping around the house.’

28. The witness’s health deteriorated after a heart attack in 2015 requiring ‘five bypasses’. His knees also became progressively worse and he had one replaced in 2017 and then the other in late 2019. He walks with the assistance of a cane and can currently ‘only walk so far.’ He is still able, however, to ‘get up and help my wife take care of the kids.’ The witness said he receives Newstart Allowance pending consideration of his application for a Disability Support Pension. His youngest son, who runs his own business, assists with a weekly contribution of $200, but his two children are unable to provide practical support every day because they ‘have their own families to worry about.’

29. The witness was asked about the claim in his statement that he was fully aware of the Applicant’s convictions. It became clear during his evidence however, that he only knew about the Mercedes theft and car chase, which he had seen in a video at the previous hearing, but not other crimes. When asked if the Applicant had talked to him about what happened, he responded: ‘No.’ When asked why they had not discussed his crimes, he responded: ‘I don’t know.’

30. The witness said the Applicant told him he would be law-abiding in the future, which he believed. He had noticed positive changes and intended to speak to the President of their ethnic community organisation to organise support if the Applicant is released. When asked if contact had been made with that person, the witness responded: ‘No.’ The witness said the Applicant would not be able to hide his drug-taking and offending as he did in the past, because the witness would ‘keep [his] eyes on him all the time’ and encourage him to return to their faith community. 

31. When asked what the effect would be if the Applicant was returned to New Zealand, the witness said he would have a ‘broken heart’ and ‘might as well give up in life.’ He thought there would be an adverse impact on his four grandchildren with ‘no father around.’ If they accompanied the Applicant to New Zealand, this would separate them from their grandparents and other family members.

    Evidence of Applicant’s partner

32. The Applicant’s partner adopted her statements as true and correct. Her oral evidence focussed on the many challenges confronting her after the Applicant’s imprisonment. This included looking after their four children and assisting the Applicant’s parents. The three eldest children are in grades 1, 3 and 4, with the youngest commencing ‘kindy’ in 2022. She agreed that with the youngest child commencing school next year, this would provide some respite from her current circumstances.

33. The witness said she has lived with her parents-in-law for a little over 11 years in rented premises, which currently costs $385 a week. Her total taxable income with Family Tax Benefit is approximately $100,000 per year. Her mother-in-law receives a pension and works part-time, while her father-in-law is on Newstart Allowance and has applied for a Disability Support Pension. They share living costs between them, and the Applicant’s younger brother makes a weekly financial contribution.

34. The witness works night shifts between 10:00pm and 6:30am, which she has done for almost four years. The Applicant’s two siblings provide some assistance, but under ethnic cultural norms, she said the responsibility primarily falls to her as the partner of the eldest son. She said her days are ‘full on.’ The ability of her parents-in-law to help is limited by health issues. She finds the situation ‘tough emotionally.’

35. The witness said she met the Applicant in late 2008 or early 2009 and he was ‘caring’ and a ‘gentleman at the start of their relationship.’ They were initially involved in their faith community but ceased involvement. Since his imprisonment she has visited the Applicant whenever possible with her children and parents-in-law. That was up to twice a week for the three years he spent in prison, but she has been unable to visit him in detention due to COVID-19 restrictions. They have maintained contact by telephone and video calls. The Applicant’s separation from their children has been hard on everyone. She said the older children avoid Father’s Day activities at school.

36. The witness agreed she gave the Applicant an ultimatum in 2015 to stop taking drugs or she would leave with their children and believed he would cease doing so. She was unaware of his past drug use, only becoming aware of it in 2015 when she noticed the Applicant’s ‘blood shot eyes.’ He did not take her ultimatum seriously and his drug use worsened. She did not confront him further because she feared he would become violent. When put to the witness that during this period she and the Applicant were not in a healthy relationship,[37] she disagreed, stating: ‘But he didn’t show any violence and he supported me and my kids and that’s stable enough for our relationship.’

    [37] Exhibit R2, 33 [40]; 34.

37. The witness said she had seen positive changes in the Applicant in the way he talked to her and their children. She felt he had received a ‘big wakeup call’ by being imprisoned and sensed from his voice that he ‘feels remorseful about being away from the kids.’ The witness said she joined a prison wives’ group for a time, which helped her emotionally and provided information about sources of support to assist the Applicant’s release. She said the Applicant is ‘cutting ties with everyone he’s known’ and if released would ‘focus on work and staying out of trouble.’

38. The witness said she returned to New Zealand with her children and parents-in-law for a holiday in 2016, but there are no family members there to support the Applicant. When asked about the four or five people she referred to as ‘friends that became family,’ she explained these were people whose visas were cancelled and had been returned to New Zealand. She agreed these people would offer support to her and the Applicant if they were living in New Zealand. When asked if she could rely on the Applicant in these circumstances, the witness responded: ‘Yes I could.’

1. The witness said she is concerned about the potential effect that the Applicant’s removal would have on his parent’s health, stating: ‘they most likely won’t take it well.’ When asked about her intentions if the Applicant is returned, the witness said she thought that moving to New Zealand would be ‘really hard’ and ‘impossible financially and emotionally.’ Her two older children had expressed a desire to stay with their grandparents. She could not ‘think of a way to move straight away.’ When asked about the impact of remaining in Australia with her children if the Applicant was removed, the witness said this would be very upsetting and traumatising for their children, because seeing him on ‘Facetime is hard enough.’

   PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

2. Clause 8.1 of the Direction states:

   (1)  When considering protection of the Australian community, decision-makers should keep in mind 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.

   (2)  Decision-makers should also give consideration to:

   a)    the nature and seriousness of the non-citizen’s conduct to date; and

   b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   Tribunal consideration: The nature and seriousness of the conduct

3. Clause 8.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to the following:

   (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

   (i)    violent and/or sexual crimes;

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

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

   (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

   (i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

   (ii)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;

   (iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

   (iv)where the non-citizen is in Australia, 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, , or an offence against section 197 A of the Act, which prohibits escape from immigration detention;

   (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

   (d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

   (e)the cumulative effect of repeated offending;

   (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

   (g)whether the non-citizen has reoffended 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).

4. The Applicant’s National Police Certificate dated 15 March 2018 follows:[38]

   [38] Exhibit R1, 25-28.

Court	Court Date	Offence	Court Result
Dandenong Magistrates’ Court	05/04/2017	Theft of a motor vehicle (3 charges) Fail to stop vehicle on police direction Reckless conduct endanger life Possess heroin Possess methylamphetamine (2 charges) Possess ecstasy (mdma/mda/mdea/mda’s) Poss cartridge ammunition w/o lic/permit Handle/receive/retention stolen goods Theft Dishonestly receive stolen goods Go equipped to steal/cheat (17 charges) Theft-from shop (shopsteal) Burglary Assault emergency worker on duty (2 charges) Deal property suspected proceed of crime Theft Fail to stop vehicle after an accident Commit indictable offence whilst on bail Unlicensed driving Carjacking (use force steal vehicle) Robbery Contravene community correction order Breach re 28/07/2016 Possess heroin Fail to answer bail (3 charges) Theft of a motor vehicle Theft Possess methylamphetamine Deal property suspected proceed of crime Commit indictable offence whilst on bail	On each charge: Aggregate 18 months imprisonment. Concurrent. Licence cancelled and disqualified for 5 years. Aggregate 18 months imprisonment. Concurrent. Aggregate 18 months imprisonment. Concurrent. Aggregate 18 months imprisonment. Concurrent. Aggregate 18 months imprisonment. Concurrent. Aggregate 18 months imprisonment. Concurrent. 18 months imprisonment. Cumulative. Licence cancelled and disqualified for 5 years. 18 months imprisonment. Base sentence. Licence cancelled and disqualified for 5 years. Proven Breach of community order. Order cancelled. 1 month imprisonment aggregate.
Frankston Magistrates’ Court	28/07/2016	Possess heroin Possess methylamphetamine Fail to answer bail (3 charges) Theft Deal property suspected proceed of crime Commit indictable offence whilst on bail granted Theft of a motor vehicle	Convicted and a Community Correction order for 12 months. Unpaid Community Work Perform 120 hours of community work. Convicted and a Community Correction order for 12 months. Unpaid Community Work Perform 120 hours of community work. Convicted and a Community Correction order for 12 months. Unpaid Community Work Perform 120 hours of community work. Licence cancelled and disqualified for 3 months.
Dandenong Magistrates’ Court	08/06/2012	Failure to comply with undertaking order Breach re 31/01/2011 Assault police Drunk in a public place Refuse to accomp to station for B.test Unlicensed driving	Proven With conviction, fined an aggregate of $500.00
Dandenong Magistrates’ Court	31/01/2011	Assault police Drunk in a public place Unlicensed driving Refuse accomp to station for b. test	Without conviction, Adjourned to 31/01/2012. To pay $500.00 to the Court Fund. Without conviction, Adjourned to 31/01/2012. To pay $500.00 to the Court Fund. Licence cancelled and disqualified for 2 years.

1. The Applicant does not dispute the seriousness of his offending.[39] While conceding that he has committed past acts of violence, however, he claimed that violence is not in his nature.

   [39] Ibid, 88 [1.1.(a)]; ASFIC 7-8 [35]-[36].

2. The 2017 sentencing remarks reflect the ‘extremely serious’ nature of the Applicant’s offending. He pleaded guilty based on the following prosecution summary:[40]

   [40] Ibid, 32-36.

   On 16 October 2016, at approximately 12.30 am, the accused was observed by police seated in the front driver's seat of a Holden Commodore which was parked…Checks revealed the vehicle was an outstanding stolen vehicle…The vehicle had been involved in a petrol theft on 7 October 2016…Police approached and arrested the accused, the identity was confirmed.

   Police searched the accused. He was wearing a black Nike bum bag which contained a black and brown wallet. Inside…were the following items: approximately 0.6 grams of a crushed white tablet of heroin; approximately 24 rounds of a 22-calibre ammunition which was located in a Mentos Mints tin; one gold-coloured bracelet; one gold-coloured ring with a clear stone; one gold-coloured ring and one silver-coloured ring. In the black and brown wallet were the following items: approximately 0.4 grams of heroin; approximately 1.7 grams of methylamphetamine; approximately 0.4 grams of methylamphetamine; and one green tablet of ecstasy.

   The accused was witnessed by police and all items seized were returned to Dandenong Police Station. The vehicle was then searched. A black Jackson-branded backpack containing a small double-ended spade and hoe with a wooden handle, an angle grinder, a dolly hammer, two screw drivers, a Nissan keyless entry car part, five angle grinding discs, an adjustable wrench, an angle grinding spanner, a pair of scissors and a small shift spanner were located.

   A black balaclava, a sledge hammer, a Converse branded bag containing a Sony camcorder and an LED headlight. A black duffel bag containing a Panasonic branded impact driver with a 19 millimetre socket, a pair of Iron Clad branded gloves, a pair of bolt cutters, a car jack, an Irwin Quick Grip clamp, a rubber mallet, a crowbar, a head mounted torch, a pair of black gloves and two sets of keys were also located, and also a black zip case containing an ice pipe. The items were returned to Dandenong Police Station and the stolen vehicle was towed.

   The accused was conveyed to Dandenong Police Station where he was interviewed. Located in the boot of the vehicle were nine Sony branded speakers which were subsequently seized. The accused stated that he was in possession of the stolen vehicle because he didn't think it was stolen and had paid $4000 cash for it to an unknown seller. The accused made admissions to being in possession of all the drugs of dependence, stating that the reason he was in possession of them was that he uses. The accused stated that he was in possession of the ammunition because he found it and that he was fascinated with it, as a result, and kept them. The accused stated he was in possession of the jewellery because they're his mother's. The accused stated he had no reason for being in possession of any other items in the vehicle. In regards to the petrol theft on 7 October, the accused stated that he had only been in possession of the vehicle for two days and denied all allegations…

   The summary for (indistinct) at approximately 3 am, on 21 November 2016, the victim was seated in his black 2009 Porsche in his driveway…At the time, the accused, in company with a  co-offender, driving a white twin-cab ute opened the car door and dragged him from the car throwing him to the ground. The offender then drove away in his vehicle. The accused's fingerprints were found on this vehicle when it was later recovered by police.

   At 6.20am, on 22 November 2016, the accused drove in the stolen Porsche to… Narre Warren North. The accused and co-offender were captured on CCTV breaking into the premises before driving away in a white Mercedes Benz. This vehicle is valued at over $200,000. At approximately 7.30 am, on 23 November 2016, a white Mercedes Benz followed an Australian Post delivery van…When the employee stopped at an address to deliver mail, the accused got out of the Mercedes Benz and stole the Australia Post delivery vehicle. The stolen Mercedes Benz was observed driving in the Clayton area on 16 December 2016 with the accused driving and another male in the passenger seat. Police followed the vehicle utilising the support of the police air wing. The accused drove the vehicle around Clayton, Springvale and Keysborough areas.

   The accused attended the Dandenong Plaza Shopping Centre. The police approached the vehicle after it had parked, parking the police vehicle behind the Mercedes Benz preventing it from leaving, and the male passenger exited the vehicle and was arrested. The accused accelerated hard ramming the car into the police vehicle. Both police members who were approaching the vehicle were forced to jump out of the way and hide behind a concrete pillar to prevent being hit by the car.

   The accused reversed and again rammed the police vehicle striking victim [name redacted] car in the process, and…drove rapidly past the police members exiting the car park. As he exited the car park, he drove over a police tyre deflation device. The accused sped out of the plaza turning onto the Princes Highway and driving towards EastLink with the tyres on the vehicle deflating. The accused drove at high speed endangering the public in his attempt to escape.

   As he reached EastLink, he lost control of the vehicle, which at this stage had lost all four tyres. The accused exited the vehicle and approached a Nissan Navara ute which was stopped at nearby traffic lights and opened the driver's door of the ute. The accused, desperate to escape, yelled, "Get out. Help me out, bro, I need your car." The victim in fear yelled, "No. What are you doing? Get out of my car." The accused reached over the victim trying to undo his seatbelt, the accused turned the ignition of the car off and the victim was resisting the accused's attempts to steal the car wrestling with him.

   While the accused was still fighting, the police arrived and arrested the accused who attempted to fight. After the arrest, the accused's possessions were searched and $1270 in cash and a small bag containing methylamphetamine were located in his property. The accused did not provide an explanation for the origin of the money. Property was located in the vehicle driven by the accused confirmed as stolen from …Narre Warren.

   The accused driving attempted car jacking and subsequent arrest were all captured on CCTV by the police air wing, as was the incident at Dandenong Plaza. At the time of offending, the accused was not a holder of a valid driver's licence and the accused was on bail at the time. The accused provided a no comment interview and declined to provide a DNA sample, and when asked his reason for the offending the accused stated, "I don't remember," but made no further comment.

3. It was submitted to the Court that the Applicant previously reconnected with negative peers following reduced work hours, and his drug use escalated to a ‘daily’ heroin and methamphetamine habit from 2015. In sentencing the Applicant, the Court referred to his offending as ‘extremely serious matters’ and declined to accept his lawyer’s plea for a short term of imprisonment:[41]

   …Mr Kura. I hear what [Applicant’s counsel] has said by way of submission on your behalf. Clearly, I have got to impose a term of imprisonment…I have indicated to her because of the extremely serious nature of some of these offences that her submissions are, with respect to imprisonment, in my view and I think in the view of the community, clearly not sufficient.

   The period of imprisonment will be substantially more than what she has submitted is appropriate. On charge 42 on the super case, that is the robbery charge, you are convicted and sentenced to 18 months' imprisonment, and on charge 33, that's the car jacking charge at Dandenong on 16 December of last year, on that charge you are convicted and sentenced to 18 months' imprisonment. Those two sentences are to be cumulative upon each other.

   With respect to all remaining charges, you are convicted and sentenced to an aggregate term of 18 months' imprisonment, and that sentence will be concurrent with the first two that I have just announced. So what that means is there is a total of three years' imprisonment and there will be a minimum of two years before being eligible for parole. A further order that with respect to charges 1, that is, theft of a motor car, 28, 29, they are theft of motor cars, 30 and 31, that is the fail to stop vehicle on police direction and the reckless conduct endangering life, and on the car jacking charge 33, and on the robbery charge 42 I understand you do not have a licence at the moment, so you are disqualified from obtaining any licence or permit for a period of five years.

   All drugs are to be forfeited to the Crown and destroyed. The cartridges to be forfeited to the Crown and destroyed. All the going equipped to steal charges, the items the subject of those charges together with the items the subject of the handle charge, charge 6, and the theft charge 24 and the dishonestly receive stolen goods 25, they are all to be forfeited to the Crown disposed of at the discretion of the minister.

   …

   So far as the breach of the Corrections order is concerned, that breach being admitted, the order is cancelled. Insofar as the resentence is concerned, he is convicted and sentenced to an aggregate of one month imprisonment, and that is to be served concurrently with the sentences that I have just announced…

   [41] Ibid, 45-47.

4. In closing, Mr Nikolic submitted that the Applicant does not dispute the seriousness of his offending but contextualised the bulk of it as arising from a ‘spiral of drug misuse’ from 2015 because of several stressors. He said the Applicant used methylamphetamine and heroin daily to ‘escape’ and as an ‘easy way out,’ and that the Tribunal should view his offending ‘in the context of drug use over that nine-month period.’ 

   Tribunal findings: The nature and seriousness of the conduct

5. Several categories of offending are apparent from the Applicant’s criminal history:

   (a)Offences involving violence, including against police and emergency workers;

   (b)Conditional liberty offences;

   (c)Drug offences;

   (d)Theft of motor vehicles or reckless conduct involving a vehicle;

   (e)Other dishonesty offences; and

   (f)Public nuisance offences and unlicensed driving.

6. The Tribunal accepts the Applicant was subjected to several stressors in 2015, but his drug and alcohol misuse spans a decade and pre-dates the contextual circumstances in 2015. The Applicant has multiple convictions for offences involving violence, which are viewed very seriously: cl 8.1.1(1)(a)(i) of the Direction. This includes removing or trying to remove people from their vehicles to steal their cars. The reckless and serious nature of his conduct is also evident when he drove a vehicle at high speed against the flow of traffic on a busy road while drug affected. It was submitted at sentencing that the Applicant had a daily heroin and methamphetamine habit and was ‘severely affected by methamphetamines and heroine (sic) at the time.’[42] Driving a vehicle while drug-affected has the potential to result in death or serious injury to other road users.

   [42] Ibid, 42 [14]-[17].

7. The Applicant’s evidence and that of his partner[43]  at both hearings is to the effect that after becoming unemployed in 2015, and prior to his arrest in 2016, he was ‘supporting himself through drug dealing practices.’[44] At the present hearing the Applicant stated he earned approximately $1,000 weekly from dealing drugs. No objection was made to these questions, but the Tribunal notes from the Applicant’s criminal history that he has not previously been convicted of a trafficking offence by a court of criminal jurisdiction. In the absence of such a conviction, the Tribunal makes no finding and attributes no weight to his trafficking claims.

   [43] Ibid, 198 [79]; Exhibit R2, 52 [6]; [43].

   [44] Exhibit R1, 379; Exhibit R2, 30 [22]; [45]; 31 [3].

8. The Applicant has been convicted of several counts of assaulting police or emergency workers on duty, most recently in April 2017, which is regarded as serious: cl 8.1.1(1)(b)(ii) of the Direction. One incident involved him ramming a police vehicle on two separate occasions, causing police to jump out of the way to avoid being struck. His conduct is aggravated by attempting to evade arrest during a high-speed pursuit, which put police and other road users at risk of serious harm or death.

1. The Tribunal acknowledges the Applicant’s sentences of imprisonment on 5 April 2017 were his first, and well below the maximum available.[45] However, imprisonment is the most severe sentencing order available to the courts,[46] and the length of his first custodial sentence reflects the objective seriousness of his conduct.

   [45] Exhibit R1, 88; ASFIC 7 [38].

   [46] See for example: Sentencing Advisory Council, ‘Imprisonment,” <

2. The Applicant has either been found guilty without conviction or convicted of approximately 50 charges since 2011. A trend of increasing seriousness is apparent. His initial offending in 2011-12 was dealt with by way of fines and a Community Service Order, which he breached. He received a 12-month CCO for his 2016 convictions, which he also contravened. In 2017 he was awarded sentences of imprisonment of up to 18 months.

3. The cumulative effect of the Applicant’s offending during the last decade has caused harm to the Australian community. This includes to the victims of his crimes and the costs borne by the community through law enforcement efforts.

4. For the reasons outlined above the Applicant’s offending is objectively very serious.

   Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

5. Clause 8.1.2(1) of the Direction states:

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

6. Clause 8.1.2(2) of the Direction relevantly provides that in assessing the risk posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

   (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

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

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

   …

7. This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’ In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J explained:

   That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”

8. The High Court of Australia (the High Court) held in Guo that past actions can be legitimate predictors of future behaviour.[47] The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty.’ The majority also observed there are a number of factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.’[48]

   [47] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 (Guo), 578-579.

   [48] Guo at 574-575.

9. More recently in Hughes v The Queen (2017) 263 CLR 338 (Hughes), Nettle J observed that evidence of a past offence ‘is not, of itself, significantly probative’ of the committing of another offence:

   Without more, it establishes only that the accused is the kind of person who has committed an offence. To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case…[49]

   [49] Hughes at 392.

10. In Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, Mortimer J reasoned at [78] that:

    …[t]he nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.

    Closing submissions

11. Mr Nikolic submitted that the Applicant has remained drug free since being arrested in 2016, which should attract considerable weight. He also pointed to the Applicant’s completion of rehabilitative courses, good conduct in custody, greater maturity, availability of family support, prospects of employment, absence of contact with negative peers, and the interests of his children as protective factors. He said the Applicant’s improved cognitive function in prison will support better decision-making in the future. It was conceded that the Applicant had not taken previous court appearances and conditional liberty arrangements seriously, but his perspectives had changed following an extended period in custody.

12. Mr Nikolic recounted Mr Simmons’ concerns about the temporal limitations of the previous Corrections Victoria risk assessments, which do not consider the Applicant’s rehabilitative progress and abstinence from drugs while in custody. Mr Nikolic also submitted that having arrived in Australia as a 10-year-old, greater tolerance should be afforded to the Applicant, including in relation to any risk he may pose to the community.

13. Mr Orchard submitted that the nature of harm arising from a repeat of the Applicant’s offending could include psychological, financial, and physical harm encompassing death. Given the Applicant’s offending pre-dated the birth of his children, Mr Orchard said little weight should be placed on the claimed stress arising in 2015 from the impending birth of the Applicant’s child. Moreover, it was unclear how ‘feeling overwhelmed’ by stressors could result in a dangerous car chase putting police and others at grave risk. Mr Orchard said there was potential for similar stressors to be repeated in the future if the Applicant’s parents again became ill, or work slowed down, or he experienced financial stress. In that context, relapse into drug use and further serious crimes could not be discounted. Mr Orchard submitted that the evidence discloses the Applicant’s crimes were not isolated or opportunistic. In light of the items found in his possession and the findings of the court, his crimes were planned, calculated, and often committed in company with others.

14. Mr Orchard said the Applicant had previously failed to comply with conditional liberty arrangements and did not take advantage of rehabilitative opportunities. Moreover, any progress he had made in custody is untested in the community. Mr Orchard also pointed to Mr Simmons’ comment that apart from the 55-hour drug and alcohol program three years ago, the Applicant ‘has had little involvement with other drug and alcohol treatment programs.’[50] He said the Applicant’s abstinence coincided with  periods of custody, or when he was subjected to drug testing as part of previous work requirements.[51]

    [50] Exhibit A3, 3 [15].

    [51] Exhibit R1, 41 [10].

15. Mr Orchard said Mr Simmons’ assessment of risk was conditional on significant support being put in place upon the Applicant’s release and him cutting ties with negative peers. He said the Applicant’s unwillingness to disclose the identities of co-offenders, and denial of some offending he pleaded guilty to, reflects incomplete insight, remorse, and lingering loyalty to negative peers.

16. In terms of protective factors, Mr Orchard said the Applicant ceased attending his faith community at the age of 15 and his intention to resume attendance is aspirational at best. Moreover, he previously ignored his partner’s ultimatum to cease drug use in 2015, and comparable protective factors were insufficient to prevent this spiraling out of control. In that context, the Applicant ‘remains a significant risk of reoffending that is unacceptably high.’    

    Repeat offending

17. Despite being dealt with by the courts for assaulting police in 2011, the Applicant was subsequently convicted of two counts of assaulting emergency workers in 2017. He has taken illicit drugs since his teenage years and was convicted of drug possession in 2016. He was convicted of further drug possession offences in 2017. The Applicant has multiple dishonesty offences and breached conditional liberty provisions on several occasions. He has driven unlicensed and refused a breath test in 2011, causing his licence to be disqualified for two years. He drove while under the influence of drugs on subsequent occasions, causing his licence to again be disqualified.[52]

    [52] Exhibit R3.

    Contributory factors

18. There are frequent references in the evidence to the Applicant’s long history of substance misuse.[53] A Department of Justice (Corrections Victoria) Report dated 6 March 2017 stated that at the time of his most recent offending, the Applicant was ‘smoking a gram of “ICE” and heroin’ daily.[54]  An Australian Community Support Organisation Report prepared for the Court in March 2017, summarised the Applicant’s drug and alcohol history as follows:[55]

    [53] Exhibit R1, 41-42; 377.

    [54] Ibid, 366.

    [55] Ibid, 377.

    Alcohol

    He started drinking alcohol at 15 years of age, when he was engaging in binge drinking patterns on weekend with peers. He stated that he would typically consume around 12 cans of premixed spirits and half a bottle of spirits, once per week. That pattern of use continued up until 21 years of age. Over the last five years, he stated that he had reduced his intake and typically ingested one stubbie of beer, on two occasions per year. He stated that he reduced his alcohol use, due to the onset of gout.

    Cannabis

    He first tried cannabis at 15 years of age and he quickly developed a daily pattern of use, smoking around three grams per occasion. He then ceased use at 21 years of age and reported no further use of the drug over the last five years.

    Methamphetamines

    He started smoking methamphetamines at 19 years of age, when he was smoking the substance intermittently. He was then engaging in periods of daily use from 23 years of age and most recently before entering custody in December 2016, he was smoking one gram per occasion. Upon his release from custody, he wanted to remain free of methamphetamines, for the benefit of his health and his family.

    Heroin

    He started smoking heroin at 19 years of age, when he was typically having ½ - 1 gram on a daily basis. He then revealed a history of sporadic use over the years and at the peak period of use before entering custody in December 2016, he was typically having one gram per day. He noted that his longest period of abstinence from the drug had spanned the last two months whilst in custody. He planned to remain free of heroin in the future.

    Mr. Kura reported no further drug use history.

    Past Alcohol & Drug Treatment:

    Mr. Kura reported no history of alcohol and other drug treatment. However, he described being amenable to treatment in the future…

19. The Applicant’s drug history and its relevance to his offending was summarised by his lawyer during sentencing on 5 April 2017:[56]

    Mr Kura has a long history of substance misuse. He initially started with cannabis in his teens until 2011. In 2011, he was employed on the railway lines and was regularly drug tested, and to his credit he did not use any illicit substances during that period.

    Unfortunately, 2015 his work began to slow down and his hours dropped significantly. This led to him having a lot of spare time and he reconnected with his high school friends who he formed the cannabis addiction with in his teens. By this stage, his high school friends had progressed to methamphetamine and heroine use, and Mr Kura began to participate in the same. In no time, his use spiraled out of control and this became a daily habit.

    This became a daily habit from 2015 and was the underlying cause of his offending, and the reason that he's before the court today. Mr Kura instructs that if he did not use during the period of time from 2015 until the end of 2016 he would suffer withdrawals which would cause him to then return to alleviate the withdrawals…he instructs that during this period he was using methamphetamines and heroine on a daily basis.

    He instructs that sometime between 5 and 16 October he was in a poor mental state as a result of his drug abuse, but he does recall purchasing the vehicle from an unknown person after the date that it was stolen…He instructs that he was not aware of the contents in the boot as he did not expect it when he purchased the vehicle, however, as he's not able to provide proof of purchase or the name of the seller his instructions are to resolve the matter today and accept responsibility as he was the owner of the vehicle at the time.

    My instructions are that…he does not have a clear recollection of what happened on 16 December as he was severely affected by methamphetamines and heroine at the time. He instructs also that he was not the person who stole the Mercedes Benz from Narre Warren, however, he does not wish to disclose the person and as such has accepted guilt for this and would like to resolve it today.

    (Errors in original.)

    [56] Ibid, 41 [7]-[21].

20. The Applicant submitted that his offending does not reflect his overall character and results largely from ‘poor coping strategies and addiction to alcohol and other substances.’ In submissions dated February 2018 he claimed that his ‘history of offending behaviour is not long,’ and referred to the illness of his parents in 2015 and partner’s pregnancy as contextually relevant to his offending:

    …Leading up to my arrest and my subsequent conviction I was bombarded with so many unforeseen crises including the failing health of my father and the unexpected financial strain that put me under. My partner was also pregnant during this phase and this news hit me with a sense of being overwhelmed. I panicked and consequently I have found myself in the worst situation possible. Instead of reaching out for help, I made the poor choice to try and ignore my problems and found that this led to my situation worsening. I know now that drug and alcohol abuse does not help a situation get better.[57]

    [57] Ibid, 94.

21. The Applicant conceded that at the time of his 2016 offending he ‘was not thinking’ about his family’s welfare due to addiction,[58] and had a ‘limited earning capacity’ because of his ‘reliance on drugs and alcohol.’ This caused him to make ‘impulsive and rash decisions.’[59] He also referred to an association with negative peers[60] as a contributory factor. The Applicant submitted, however, that he is now ‘drug and alcohol free’ and had ‘broken ties with old associates’ who ‘encouraged [him] to socialise negatively.’[61]

    [58] Exhibit A1, Statement dated 2 December 2019 [67].

    [59] Exhibit R1, 88.

    [60] Ibid, 366.

    [61] Ibid, 90.

    Rehabilitation

22. The CCO previously imposed on the Applicant came with several assessment, supervision, and treatment conditions. A report dated 1 December 2016 noted the Applicant failed to attend several reporting and supervision conditions,[62] committed further offences, and on 18 October 2016 tested positive for ‘substances opiates and amphet-type substances.’[63]

    [62] Ibid, 347.

    [63] Ibid, 348.

23. The Applicant submitted in his statement that while imprisoned he has:

    …embraced all services that are available to me, so I can be rehabilitated and identify what areas of myself I need to change and how to learn strategies to do so by completing programs. Also being enrolled in future courses….I have also completed a drug and alcohol course which went for 55 hours. Its focus was about the triggers and groups of people I need to stay away from, and now I am currently doing the violence intervention program. Which goes for 5 months, I am doing whatever I can in my power to better myself.[64]

    [64] Ibid, 136.

24. The Tribunal has considered certificates in evidence attesting to the Applicant’s participation in the following programs:

    (a)Certificate of Achievement for Wised Up (55-hour Intensive AOD Program) dated 13 April 2018;

    (b)Certificate of Completion for Moderate-Intensity Violence Intervention Program;

    (c)Certificate of Completion for Going Places;

    (d)Completion of one unit (Control traffic with stop-slow bat) towards a Certificate II in Construction Pathways;

    (e)Gaining a Licence to operate a forklift truck and Licence to perform high risk work in 2018; and

    (f)Participation in 2018 in a voluntary pre- and post-employment program with Melbourne City Mission.

25. The Applicant also submitted that while imprisoned he has taken on a:

    …significant leadership role in the planning of an event to celebrate and observe Waitangi Day. I have taken on the role of tutor and leader for a group of about 20 prisoners from a range of different ethnicities and have taught them several cultural dances and songs over the past eight weeks. This involvement has given me a sense of achievement and renewed my passion for helping others. I have enjoyed taking on a mentoring role for the younger prisoners, many of whom are unfamiliar with their own Pacific languages and cultures.[65]

    [65] Ibid, 89.

26. Mr Simmons’ evidence, discussed later, refers to the Applicant’s future counselling and rehabilitative needs. The Tribunal notes, however, that decisions should not be delayed in order for courses or treatment to be undertaken: cl 8.1.2(2)(b)(ii) of the Direction.

    Remorse

27. In his February 2018 submissions, the Applicant expressed remorse for his actions:

    I am deeply remorseful for my actions and to demonstrate this I have used my time in prison to focus on my rehabilitation and reintegration back into the community. I appreciate and value my family and our life here in Australia and if the decision to mandatorily cancel my visa is revoked, I am committed to be a positive, productive and engaged member of Australian society.[66]

    [66] Ibid, 88.

28. The issue of remorse was an area of persistent questioning. Mr Orchard submitted that the Applicant’s continuing denial of some offending, despite pleading and being found guilty, showed a lack of remorse. He contended this may reflect lingering loyalties to negative peers. Mr Nikolic submitted it was possible for the Applicant ‘to show remorse without admitting he stole the Mercedes’ and he ‘readily accepted guilt for other offences.’ He said the Applicant’s genuine remorse was evident when he stated he was thankful he did not kill anyone during the high-speed car chase with police.

    Conduct while imprisoned / detained

29. The Applicant submitted that he has remained drug and incident free in custodial environments for the last four years,[67] despite the ready availability of drugs.[68]

    [67] ASFIC, 4 [21].

    [68] Ibid, 7-8 [40]-[43]; Exhibit A7.

    Risk of reoffending

1. The Applicant has four biological children under the age of nine in Australia, with the youngest born while he was imprisoned.[89] He submitted that he previously had an active role in their lives, but ‘lost sight of what it means to be the father of such wonderful children’ and ‘took for granted’ that he would always have them in his life.[90] The Applicant stated that he loves all his children, but is ‘very close’ to his eldest son. The Applicant submitted that he wants to provide his children ‘with a stable home with two loving and committed parents’:

   If I must leave Australia and return to New Zealand I would have to uproot them from the only home, they have known. All my children have been born in Australia and they deserve to grow up in this country, where there are far better employment and educational opportunities for them. Their social groups and extended family are here, and their mother is here as well. I know that I was not thinking about their welfare when I committed these crimes, but now that I am drug and alcohol free and I have had a chance to reflect on what I have done I know that separating our family unit (whether it be me from my nuclear family, or myself, partner and children from our extended family support system) is not what is in the best interest of my children.

   …

   I want to be able to instil in my children a connection to their Pacific heritage but also a cultural connection to Australia – because they are Australian.

   …

   If my visa is cancelled I will never be able to return where my children were born and have a right to live. This will have the most negative and detrimental effect on them and on our relationship. I know that my children love this country – it is all that they know, it is their home. I will never take them away from somewhere they feel safe and secure – and so it is quite possible that they will be without a father if my visa is cancelled. The impact of this will be huge. My sons will grow up without a guiding hand to teach them all the things that it took me to hit rock bottom to learn. My daughter will grow up not being able to see what a safe and loving relationship between a mother and a father looks like.[91]

   (Errors in original.)

   [89] Exhibit R1, 90.

   [90] Ibid, 92.

   [91] Ibid, 90-93.

2. The Applicant referred to a minor niece who is now 16 years of age and is the daughter of his elder sister.[92] He also claimed to have a close relationship with the two minor children of his younger brother.[93]

   [92] Ibid, 108.

   [93] Ibid, 110.

3. The collective evidence of the Applicant’s family members is that it is in the best interests of his minor children for him to remain in Australia. 

4. In an undated statement lodged with the Tribunal on 2 December 2019, the Applicant’s partner stated he is ‘an amazing partner and father’.[94] She referred to the negative effects the Applicant’s imprisonment has had on their children. This includes the significant additional responsibility she has assumed in caring for their children and assisting the Applicant’s parents. She stated that if the Applicant is returned to New Zealand, it is ‘not a viable option’ at this stage for her or their children to accompany him. No decisions have yet been made in this regard. In his closing submissions, Mr Nikolic submitted that the children would be adversely affected irrespective of the choice made, which weighed significantly in favour of revocation. If the Applicant’s partner and their children remain in Australia, the children would be deprived of a meaningful relationship with their father. If they accompany the Applicant to New Zealand, there would be inevitable disruption to the schooling of the three eldest children, and separation from existing family and friendship groups, particularly with their grandparents.

   [94] Exhibit A6.

5. Mr Orchard pointed out that the Applicant has been absent from his children’s lives for prolonged periods and his conduct had negatively affected them. The Applicant conceded he did not put the interests of his children first in the past, ignoring an ultimatum from his partner that she would leave with their children if his drug use continued. Mr Orchard submitted this primary consideration weighed neutrally at best.  

   Tribunal findings: Best interests of minor children in Australia

6. It is clear from the evidence that the Applicant loves his children. He has maintained a relationship with them through telephone calls and visits and aspires to resume a close parental relationship if released. The views of the Applicant’s children are not known, but the Tribunal accepts from the testimony of other family members that they love their father and want him to remain in Australia. They also have a close connection with their grandparents with whom they have lived since birth, and other family and school links.

7. The Applicant’s relationship with his children for over four years has been characterised by long periods of absence, which has negatively impacted them. This has arisen directly from his criminal conduct. He admits losing focus in the past because of his addictions, negative associations, and failing to heed his partner’s ultimatum in 2015. He instead continued using drugs and kept this from his family. The burden of caring for his children and providing financially for their needs has since fallen to others, particularly his partner and parents.

8. Given the Tribunal’s finding that the Applicant’s risk of reoffending is unacceptably high, fulfilling his aspiration to play a more meaningful role in his children’s lives remains uncertain. The evidence about whether the Applicant’s partner and children would accompany him to New Zealand is also uncertain.

9. The community would have considerable sympathy for Applicant’s partner, who understandably highlights that accompanying the Applicant to New Zealand would be very difficult. But there is no barrier to her doing so. In circumstances where the Applicant’s partner and their children accompanied him to New Zealand, this would enable the family to stay together and re-build their relationship. Some upheaval would inevitably result from practical challenges, such as finding accommodation and new schools for the older children. The children are quite young, however, and while this would understandably be a difficult transition, relocating to a comparable country like New Zealand remains a viable option. If the Applicant’s partner and children decided to remain in Australia, however, this would undoubtedly cause emotional distress, but would be a personal choice made by the Applicant and his partner. There is no evidence she and the children could not visit the Applicant in New Zealand, having previously travelled there in 2016.

10. Little weight is placed on the Applicant’s avuncular role with nieces and nephews. These children have others who perform a parental role and their relationship with the Applicant has been characterised by long periods of absence and limited meaningful contact during the last four years. There is no evidence they could not maintain contact with him by telephone as is currently the case or visit him in New Zealand if their parents agreed.

11. On balance, revocation is in the best interests of the Applicant’s children, particularly his three older children who are already attending school. It is also in the best interests of the Applicant’s nieces and nephews, but to a much lesser extent. This primary consideration weighs substantially in favour of revocation if the Applicant’s partner and children decided to remain in Australia. It would weigh much less if they decided to accompany the Applicant to New Zealand.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

12. Clause 8.4(1) of the Direction states:

    The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

13. Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:

    (a)  acts of family violence;

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

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

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

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

    (f)    worker exploitation.

14. Clause 8.4(3) states that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. Clause 8.4(4) states that this consideration is ‘about the expectations of the Australian community as a whole’ and directs decision makers to proceed on the basis of the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.

15. Clause 8.4(4) of the Direction correlates with the reasoning of the FCAFC in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[95]

    [95] FYBR (2019) 272 FCR 454, at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).

16. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[96]

    [96] Ibid at 473 [75]–[76] (Charlesworth J).

17. The Tribunal notes the High Court refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[97]  

    [97]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 56.

18. The Applicant submitted the following in respect of this primary consideration:

    Given the length of time that I have lived in Australia and my ties to the community here in Melbourne as well as my exemplary behaviour while in prison it is my opinion that it is reasonable for the Australian community to expect that my visa would be reinstated upon my release. The basis for my belief in this is that I am not a risk to the community and likelihood of my recidivism is slim to none. I have learned my lesson from this experience and I am working hard to move past this.

    …It is my belief that community expectations would be that as a fully rehabilitated man that I should remain here in Australia and contribute positively to the economy and society in general. I pose no continued threat to the Australian community and I have taken full responsibility for my actions by serving this sentence.[98]

    [98] Exhibit R1, 91.

19. Mr Nikolic submitted that the expectations of the community are:

    …necessarily adverse to the Applicant. However, in the circumstances of this case, this consideration must be balanced against the best interests of the Applicant’s children, the Applicant’s ties to the Australian community and the impediments that he may suffer on return to New Zealand. The Applicant maintains that those matters definitively outweigh the expectations of the Australian community in this case.

    (Footnotes removed.)

20. Mr Orchard stated in closing that given the Applicant’s unacceptable behaviour, including against police, he had forfeited the right to remain in Australia and this primary consideration weighed ‘very heavily’ against revocation. 

    Tribunal findings: Expectations of the Australian community

21. FYBR requires decision-makers to focus on what the Government has deemed the community’s expectations to be, to have due regard to those views, and to generally afford them more weight than other non-primary considerations: cl 7(2) of the Direction.[99]

    [99] FYBR, [74] (Charlesworth J). See also Say v Administrative Appeals Tribunal [2020] FCA 1489, [39] (Charlesworth J).

22. The Tribunal accepts Mr Nikolic’s submission, founded on the Principles in the Direction, that ‘Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.’ The Applicant has lived in Australia since the age of nine, and therefore for most of his life. But his circumstances also attract principles in the Direction unfavourable to his application, such as clauses 5.2(2)-(4). The Applicant has persistently  offended and repeatedly failed to meet the expectations of the Australian community that he obeys Australian laws. He has committed serious and violent offences, including against police. Notwithstanding his lengthy residence in Australia and the other positive features of his case, the community would expect he should not be permitted to hold a visa.

23. This primary consideration weighs substantially against revocation.

    OTHER CONSIDERATIONS

    Tribunal Consideration: International non-refoulement obligations

24. The Applicant is a New Zealand national who has not advanced any non-refoulement claims. The Tribunal finds this consideration carries neutral weight.

    Tribunal consideration: Extent of impediments if removed

25. Clause 9.2(1) of the Direction states that:

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

    a)        The non-citizen’s age and health;

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

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

26. The Applicant is 30 years of age, in good health, and aspires to an immediate resumption of work if released. There is a reference to gout in the documentary materials, but this was not referred to in oral evidence and is uncorroborated as a current condition by expert evidence. He referred to close cultural association with people of New Zealand and Pacific Islands origins in Australia, and to have led preparations for Waitangi Day while imprisoned. 

27. The Applicant submitted that he has ‘little to no meaningful familial connections in New Zealand,’ because his parents, siblings, extended family, and faith community reside in Australia.[100] The Applicant’s partner stated they have four or five people who are friends that have ‘become family’ in New Zealand, from whom they may be able to source a measure of emotional or practical support.

    [100] Exhibit R1, 91.

    Tribunal findings: Extent of impediments if removed

28. The Applicant is relatively young, in good health, and has a history of work in Australia. There are no discernible language or cultural impediment to his repatriation. There is also no evidence he would be treated differently to any other citizen of New Zealand in accessing housing, medical, income or other social support if he needed it. The Applicant’s evidence is that he wants to return to work and assist his family immediately upon release. He has undertaken some vocational courses and work in custodial environments, which may have enhanced his work capacity.

29. It is acknowledged the Applicant has lived in Australia for most of his life and has no direct family ties in New Zealand. There are some close friends in New Zealand who may be able to provide some support, but this is admittedly a much lesser support framework than is available to him from family and others in Australia. The Applicant would be re-establishing himself in a country he last visited in 2007, albeit that is comparable in many respects to Australia. He has demonstrated a past capacity for work, however, and may be able to rely on some practical and financial support from family in Australia to re-establish himself.

30. On balance, this consideration weighs slightly in favour of revocation.

    Impact on victims

31. Clause 9.3(1) of the Direction states:

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

32. The Federal Court has previously held this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[101] 

    [101] HVLC v Minister for Home Affairs [2019] FCA 616, [13] (Colvin J). Perram J has also recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.

33. This consideration is not enlivened by the evidence and the Tribunal places no weight on it.

    Tribunal consideration: Links to the Australian community

34. Clause 9.4 of the Direction provides that decision makers must, reflecting on the principles at clause 5.2, have regard to cl 9.4.1 relating to the Strength, nature and duration of ties to Australia, and cl 9.4.2 relating to Impact on Australian business interests. There is no evidence that a decision in this matter risks compromising the delivery of a major project or an important service in Australia. The presumption in the Direction is therefore not displaced and cl 9.4.2 of the Direction carries neutral weight.

    Tribunal consideration: Strength, nature and duration of ties

35. Clause 9.4.1 of the Direction states:

    (1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

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

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

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

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

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

1. The Applicant has lived in Australia for the last 20 years, having arrived here when almost ten years of age. He stated in his 2018 Personal Circumstances Form that he worked between 2005 and 2011 in a variety of labouring and manual handling roles.[102] The Tribunal also notes six photocopies of identity cards in evidence, two of which appear to have been issued to the Applicant in 2008 and 2013, suggestive of some work as a rail industry worker in 2013.[103] The letters from his former employer also suggest the Applicant has undertaken work as a jackhammer operator intermittently from 2011 until early 2015.

   [102] Exhibit R1, 112.

   [103] Ibid, 117.

2. The Applicant first came to the attention of police for violent conduct in 2008 and his criminal record spans a decade. He relies on the following ties to Australia:

   (a)A defacto relationship with his current partner for over ten years. He stated that although his imprisonment ‘has caused some strain,’ they planned to marry upon his release and become ‘an even stronger couple.’[104] The Applicant submitted that if he is unable to remain in Australia, his partner would be ‘devastated’ because:

   …she would be without support for the children both financially and emotionally for an indeterminant length of time. This would undoubtedly increase stress levels for her and potentially impact her mental health and her capacity to adequately care for our children. My partner is a great mother – my actions should not result in her being unable to provide a loving home for our children…

   The anxiety levels that she has felt since the notification of my visa cancellation has come through have been enormous. She has lost sleep over this and has had a significant loss of appetite. These are possible signs that she is developing depression. If she continues this downward spiral of negative feelings, hopelessness and feeling overwhelmed I know that my family will fall apart. She is a strong woman but there is only so much that a person can take before they break down completely.[105]

   (b)The Applicant listed his parents, two siblings, brother-in-law, uncle, aunt, two cousins and a niece as ‘close family members.’[106] He also claimed to have sixty other relatives in Australia, but no relatives in New Zealand.[107] In relation to the impact of non-revocation on his family in Australia, the Applicant submitted:

   The cancellation of my visa will bring utter turmoil and undue hardship to my family – particularly to my parents. They are elderly and I am afraid that this will cause them to be overwhelmed and they will be unable to support themselves financially, emotionally and physically. My parents currently live with my partner and my children, but her priority needs to be taking care of the kids. My siblings have looked to me as a male role-model and if given the opportunity to stay in Australia, I want to be able to live up to that expectation. Just being away from my family for this time that I have been in prison has been difficult, if this was to be permanent I know that my parents would not be able to cope.[108]

   [104] Ibid, 92.

   [105] Ibid.

   [106] Ibid, 110.

   [107] Ibid, 110; 113.

   [108] Ibid, 93.

3. The Tribunal has considered a letter dated 20 October 2017 from a consultant cardiothoracic surgeon and hospital records between May 2016 and December 2017 relating to the health of the Applicant’s parents.[109] The Tribunal acknowledges that the Applicant’s mother works part time, has experienced some hip issues during the last year, and although she has previously suffered from cancer, is in remission.[110]

   [109] Exhibit A8.

   [110] Exhibit A3, 1 [2].

4. The Tribunal has considered the supportive materials in evidence from the Applicant’s father,[111] mother,[112] and partner,[113] sister,[114] two cousins,[115]  and a ‘distant cousin,’[116] Other letters in evidence are an:

   (a)Undated letter with no address or other contact details from a person purporting to be a reverend, who last interacted with the Applicant in 2011;[117]

   (b)Letter dated 23 January 2018 from an ‘acting Director’ of a company, since deregistered, stating that the Applicant worked for the company since 2011 ‘periodically when work is available.’[118]  The letter stated that ‘if the opportunity arises [the company] is willing to offer him future employment;’

   (c)Letter dated 10 April 2018 from an employment consultant at Melbourne City Mission who worked with the Applicant during his imprisonment in preparation for work following release.[119]

   [111] Exhibit R1, 122-123.

   [112] Ibid, 124.

   [113] Ibid, 125-126; and a further letter in the bundle of materials lodged with Tribunal on 2 December 2019.

   [114] Ibid, 133-134.

   [115] Ibid, 127; 129.

   [116] Ibid, 128

   [117] Ibid, 130.

   [118] Ibid, 131-132.

   [119] Ibid, 138.

5. In terms of positive contributions in Australia, the Applicant claimed involvement in:

   - Participating in fundraising for charitable groups (particularly charities for children)

   - Volunteer for local church that works with homeless people and youth

   - Played rugby for a local rugby club and supported other teams

   - Assisting in cultural and language groups for young Cook Islanders in Melbourne

   - Assisted with my children’s schools – parent volunteer for them and also helping in the classrooms where I can.

   …

   There are growing numbers of Cook Islands Maori in Melbourne. I have been committed to working with this growing community to support the retention of language and culture in the younger generations that are born here in Australia. If I am removed from Melbourne that would be one less resource that our small community has to help impart these language and cultural skills to. I have the benefit of being able to speak in my parents’ native tongue this is not something that every young person from my culture has. I would like to continue the work that I had started in my local community before being convicted. This is something that I can positively contribute to Australia – where my children and their children will live and grow and hopefully become part of the rich fabric of this country.[120]

   [120] Ibid, 94-95.

   Tribunal findings: Strength, nature and duration of ties

6. The Applicant has lived in Australia for most of his life and the Tribunal accepts that when he is working and not abusing drugs or alcohol, is a valued member of his family and capable of making a positive contribution.  He has enjoyed the strong support of many people over the years. His partner has borne a significant burden in helping care for their children and assisting the Applicant’s parents since his incarceration four years ago. She has suffered loneliness and emotional stress. It is to her credit and the credit of the Applicant’s parents and other family members, that they have adjusted to the Applicant’s prolonged absence from their lives.

7. The Tribunal accepts the medical evidence relating to health issues suffered by the Applicant’s parents since 2015. But this material is dated and there is no current expert evidence about their medical conditions or the precise extent of their support needs. With the assistance of the Applicant’s partner, siblings, and Government benefits, the Applicant’s parents have managed to address their medical and other needs in his absence. The Tribunal accepts that if the Applicant remained abstinent from drugs and law-abiding, he could make a valued contribution to his parent’s needs. Given the Tribunal’s earlier findings, however, about the protracted nature of his addictions and offending, much of which he was able to conceal from his partner and parents, his desire to play a more prominent role as eldest son remains aspirational at best.

8. The Applicant has significant emotional ties to immediate family members in Australia and his removal has the potential to cause great emotional distress. In the event of a non-revocation decision, it is acknowledged a very difficult decision confronts the Applicant and his partner about whether she and the children accompany him to New Zealand. Irrespective of the choice made, adverse consequences result. If the Applicant’s partner and children accompanied him, this would disrupt the life they have made for themselves in Australia. The children would be separated from their grandparents, with whom they have lived since birth and other extended family. The mutually supportive arrangements currently in place would be fractured and different arrangements would have to be made to support the Applicant’s parents. This would have an adverse effect on the Applicant’s parents and other relatives in terms of the financial, practical, and emotional support arrangements currently in place.  If the Applicant’s partner and children remained in Australia, that would extend the four-year absence the Applicant has had from his children’s lives. He would have to continue maintaining their relationship through technology and perhaps visits to New Zealand, which is sub-optimal at best.    

9. What ties the Applicant has are overwhelmingly here in Australia and this consideration weighs very substantially in favour of revocation. 

   Additional considerations

10. No additional considerations were advanced by the parties and I have not identified any ‘other considerations’ relevant to the specific circumstances of this application, as provided for at cl 9(1) of the Direction.

    CONCLUSION

11. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. The Tribunal does not consider it necessary to depart from the guidance that greater weight ‘should generally be given’ to the primary considerations than other considerations.

12. The Applicant’s repeat offending and other serious conduct across several categories, is very serious.  Set against the decade-long origins of his drug use and offending, the Tribunal is unpersuaded that his abstinence and law-abiding conduct in custody, has mitigated his recidivism risk to an acceptable level. The Applicant’s longest period of abstinence from drug use is since being imprisoned. His aspiration to avoid a relapse and remain law-abiding is untested in the community, where his past motivation has been insufficient. The protective factors he invokes are comparable to those existing in the past, which were similarly insufficient. Any repeat of his offences could result in further significant harm to the community. Notwithstanding his lengthy residence in Australia and the other positive features of his case, the community would expect he should not hold a visa.

13. The Tribunal has no doubt the Applicant loves his children and aspires to resume a more prominent role in their lives. The circumstances of this case, however, disclose he has not always put their interests first. He disregarded an ultimatum from his partner to cease drug use in 2015 or she would leave him and take their children. His drug use and crimes only escalated. On balance, however, revocation is in the best interests of the Applicant’s children and, to a lesser extent, his nieces and nephews.

14. Given the Applicant’s age, health, history of work in Australia, and familiarity with New Zealand culture, the extent of impediments to his repatriation are not substantial. There is also no evidence he would be treated differently to other citizens of New Zealand if he needed assistance. That said, what ties the Applicant has are overwhelmingly in Australia, which weighs most significantly in favour of revocation. 

15. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because two primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children in Australia,’ and the relevant other considerations in this matter.

    DECISION

16. It follows that the Tribunal affirms the decision under review.

I certify that the preceding 186 (One hundred and eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

…[sgd]……………………………….
Associate

Dated: 18 May 2021

Date of hearing:	3 and 4 May 2021
Advocate for Applicant:	Mr Dushan Nikolic
Solicitors for Applicant	Carina Ford Lawyers
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers