Lafaele and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2827

Lafaele and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2827 (31 August 2023)
Division:GENERAL DIVISION
File Number:2021/4213
Re:Albert Lafaele
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:31 August 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 22 June 2021 made by a delegate of the Respondent and substitutes it with a decision to not cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
.........................[SGD]............................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – case affected by Pearson v Ministerial for Home Affairs [2022] FCAFC 203 - Applicant released into the community - application of the Migration Amendment (Aggregated Sentences) Act 2023 (Cth) to the case- Applicant continues to remain in the community- Applicant’s recidivist risk factors assessed in the community- consideration of Ministerial Direction No. 99 – finding of another reason to revoke the mandatory cancellation decision- decision under review set aside and substituted.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Pearson v Ministerial for Home Affairs [2022] FCAFC 203
PNLB and Minister for Immigration and Boarder Protection [2018] AATA 162
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
XJLR v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2022] FCAFC 6
SECONDARY MATERIALS
Ministerial Direction No 99- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
31 August 2023
INTRODUCTION

Albert Lafaele (‘the Applicant’) is a 58-year old citizen of New Zealand, born in September 1964. He first arrived in Australia in December 2004 as a 40-year old. In the 12 months following his arrival, the Applicant departed from and returned to Australia on eight separate occasions. The cumulative period of time he spent out of the country during this 12 month period was approximately four months. Following the date of his most recent arrival (i.e 17 December 2005) he has never departed Australia.[1]
[1] See the Applicant’s movement history, G1, pp 108-109.
It is safe to find the Applicant has regarded Australia as his country of residence since December 2005. At all material times while in Australia, the Applicant has held a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’). On 7 July 2020, while the Applicant was serving a full-time custodial term of imprisonment, a delegate for the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[2]
[2] G1, pp 121-128.
The Applicant made written representations to the Respondent requesting revocation of the mandatory cancellation of the Visa. These representations appear in a document titled ‘request for Revocation of a Mandatory Visa Cancellation under s 501(3A)’. This document essentially comprises a summary of the Applicant’s personal particulars and a duly completed ‘Personal Circumstances Form’ (‘PCF’) together with relevant attachments.[3] These representations had little or no traction with the Respondent’s delegate who, on 22 June 2021, refused to revoke the earlier mandatory cancellation decision (‘Decision Under Review’).[4] This ‘refusal to revoke’ decision was duly communicated to the Applicant, who on 23 June 2021, signed an acknowledgement confirming his receipt of it.[5]
[3] Ibid, pp 137-174.
[4] Ibid, pp 8-32.
[5] Ibid, p 33.
There followed on 26 June 2021 an application to this Tribunal seeking merits review of the 'refusal to revoke’ decision made on 22 June 2021.[6] That application was ventilated before this Tribunal (differently constituted) on 2, 8 and 9 September 2021. On 15 September 2021, the differently constituted Tribunal decided to affirm the delegate’s refusal to revoke decision made on 22 June 2021.The Applicant then sought judicial review of the Tribunal’s decision. On 13 December 2021, the Federal Court made orders (inter alia) quashing the Tribunal’s decision and remitting the matter for de novo re-hearing in this Tribunal.
[6] Ibid, pp 1-7.
The remitted hearing of this matter initially proceeded before me on 26, 27 May and 16 December 2022.[7] At the conclusion of the third hearing day, I made procedural directions for the filing and service of written closing submissions. The hearing was resumed on 3 and 4 August 2023 for oral closing submissions and any further submissions the parties wished to make. The remittal hearing that proceeded before me received oral evidence from:
·the Applicant;
·his adult son, Mr Chanel Lafaele Arama;
·his adult step-daughter, Ms Moneniq Angell (also known as Lataya Anahera Arama); and
·the clinical and forensic psychologist, Dr Emily Kwok.
[7] Under the auspices of the previous Ministerial Direction 90.
The remitted hearing before me also received written evidence comprising, in essence, a conglomeration of (1) material put before the previous Tribunal that heard the matter; and (2) additional material sought to be relied on by the parties for this remitted hearing. As best as I understood the parties’ respective positions, the Exhibit List produced by the Tribunal purporting to cover the totality of the material for this remittal hearing was not in dispute. A true and correct copy of that Exhibit List is annexed to these Reasons and marked ‘Annexure A’.
Following conclusion of the third hearing day of the instant proceeding on 16 December 2022, the Full Court of the Federal Court of Australia delivered its judgment in Pearson v Ministerial for Home Affairs [2022] FCAFC 203 (‘Pearson’) on 22 December 2022. Pearson was authority for the proposition that an aggregate sentence (being a single sentence imposed in relation to two or more criminal offences of which a person has been convicted) did not fall within the definitional auspices of s 501(7)(c) of the Act that deals with whether a non-citizen can be found to have ‘a substantial criminal record’.
Pearson materially impacted the validity of the abovementioned mandatory cancellation decision of the Applicant’s Visa, such that the aggregation of past sentences previously causing him to meet the 12-month threshold in s 501(7)(c) of the Act no longer engaged the operative effect of any mandatory cancellation of his visa pursuant to s 501(3A). Accordingly, the Applicant was released from immigration detention on 30 December 2022. This Tribunal then dismissed the instant application on 6 February 2023 pursuant to s 42A(1A) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’).
In response to Pearson, the Commonwealth Parliament enacted the Migration Amendment (Aggregated Sentences) Act 2023 (Cth) (‘MAAS Act’). Section 5AB of the MAAS Act provides that the Applicant’s sentences can be aggregated to produce a term of imprisonment of 12 months or more. In turn, this spawns respective findings that (1) pursuant to s 501(7)(c) of the Act he would be found to have a substantial criminal record; (2) pursuant to s 501(6)(a) of the Act, he would not pass the character test; and (3) pursuant to s 501(3A)(a)(i) of the Act, the mandatory cancellation of the Visa originally made on 7 July 2020 was re-enlivened.
For completeness, it should be noted that s 4 of the Schedule to the MAAS Act deemed the original mandatory cancellation decision on 7 July 2020 a valid exercise of that power. The corollary was that the ‘refusal to revoke’ decision made on 22 June 2021 was likewise deemed to be a valid exercise of that power due to the presence of an extant mandatory cancellation decision made approximately 12 months earlier.[8]
[8] XJLR v Minister for Immigration, Citizenship, Migrant Service and Multicultural Affairs [2022[ FCAFC 6.
There followed written notification (dated 17 February 2023) by the Respondent’s Department to the Applicant about (1) the re-enlivening of the mandatory cancellation of his Visa; and (2) the renewed risk of his removal from Australia. In accordance with the further requirements of this correspondence, the Applicant self-reported to the Australian Border Force Authorities and provided them with his complete contact details. Despite what may be contended at [20] of the Respondent’s further updated Statement of Facts, Issues and Contentions (‘SFIC’), this contention is no longer propounded as a means of suggesting the Applicant has either failed to self-report or that he has otherwise concealed his whereabouts from the authorities. In short, those authorities know, and have always known, where to locate and apprehend the Applicant should they so desire.
Perhaps as a result of the understandable confusion following Pearson and the MAAS Act, the Applicant did, on 2 March 2023, file a fresh application[9] seeking merits review of the re-enlivened ‘refusal to revoke’ decision made on 22 June 2021. Although the fresh application was filed out of time,[10] this point went nowhere. This is because on 17 May 2023, this Tribunal did, pursuant to s 42A(9) of the AAT Act, re-instate the instant proceeding (i.e file number [2021/4213]) and subsequently dismissed the Applicant’s fresh application with the Applicant’s consent.
[9] This fresh application was allocated Tribunal File Number 2023/1329.
[10] That is, after the nine day period mandated by s 500(6B) of the Act following the above-mentioned notification from the Respondent’s Department about the re-enlivening of the ‘refusal to revoke decision’ made on 22 June 2021.
It follows that the Tribunal now has, pursuant to s 500(1)(ba) of the Act, jurisdiction to determine whether to set aside or affirm the ‘Decision Under Review .
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant’s abovementioned representations made in his PCF dated 31 July 2020 satisfy the requirements of s 501CA(4)(a) of the Act. The remaining live issues before the Tribunal respectively derive from ss 501CA(4)(b)(i) and (ii) of the Act. They comprise:
(a)whether the Applicant passes the character test; and if not,
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
In its latest SFIC, the Respondent – to my mind, correctly – contends:
‘The applicant does not pass the character test by virtue of the sentence imposed by the Parramatta District Court to an aggregate term of imprisonment of 4 years, with a non-parole period of 2 years and six months (s 5AB [of the MAAS Act] and ss 501(6)(a) and (7)(c) of the Act).’[11]
[11] R1, p 7, [34].
In the Applicant’s latest SFIC, although not explicitly saying the Applicant does not pass the character test, respective concessions to the following effect nevertheless appear:
·the Applicant has a substantial criminal record in New Zealand;[12]
·upon migrating to Australia, the Applicant continued to commit offences;[13]
·the Applicant was sentenced (in June 2020) to an aggregate term of imprisonment of 4 years; and[14]
·that ‘The issue in these proceeding [sic] is whether the Tribunal…should find there is another reason to revoke the mandatory cancellation of [the Visa]…’[15] ].
[12] A1, p 3, [16].
[13] Ibid, p 4, [22].
[14] Ibid, p 5, [29].
[15] A1, p 2, [12].
I am of the view (and I find) that the abovementioned sentence of four years imposed in June 2020 renders the Applicant incapable of passing the character test because he must be found to have a substantial criminal record.[16] Consequently, the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[16] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
Is there another reason for the revocation of the mandatory cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[17]
[17] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
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 8.55(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 measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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 197A 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 re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending

The Applicant has a long and storied history of offending both here and in New Zealand. The Direction mandates that in addition to Australian offending, the Tribunal must take into account any ‘…offence or conduct… committed in another country, whether that offence or conduct is classified as an offence in Australia.’[18]
[18] Direction, [8.1.1(1)(h)].
The material helpfully contains a tabulated summary of the Applicant’s offending in New Zealand.[19] To the best of my recollection, neither side cavilled with the accuracy and/or detail appearing in this tabulated summary. In New Zealand, the Applicant has convictions for some 42 offences that were dealt with at 23 separate sentencing episodes. His New Zealand offending history runs, in terms of convictions, from February 1981 to April 2001. It involves the commission of offences in the realm of property offences, socially inappropriate conduct, a weapons offence, drug offences (including possession and cultivation), making a false statement, failing to answer bail and/or breaching periodic detention orders and arson.
[19] G1, pp 603-607.
His convictions in New Zealand involved both the imposition of time in actual custody and the making of non-custodial orders such as (1) probation; (2) non-residential periodic detention; (3) ‘corrective training’; (4) fines; (5) orders for payment of financial compensation to victims; and (6) orders for ‘supervision by community corrections’. The Applicant’s offending in New Zealand resulted in the imposition of respective head custodial terms amounting to seven years and two months.
The material also contains a helpful tabulation of the Applicant’s offending in Australia. Again, to the best of my recollection, neither side cavilled with the accuracy and/or detail appearing in this tabulated summary.[20] In Australia, he has offended in the realm of traffic/driving offences, a property offence and drug offending (both possession and supply). His Australian offending has attracted convictions for 15 offences that were dealt with at eight separate sentencing episodes. It is a history that runs (in terms of sentencing dates) from March 2006 to June 2020.
[20] G1, pp 608-611.
His Australian offending has been punished by non-custodial sentences in the forms of bonds, fines, disqualification of his driving privileges, a community service order, the imposition of bonds (including conditional release orders). He also has one, albeit significant, conviction for drug offending that attracted the imposition of an aggregate four-year head custodial term with a non-parole period of two years and six months.
In summary then, the Applicant has an offending history (in both New Zealand and Australia) that runs (in sentencing terms) for almost 40 years. It involves the commission of 57 offences dealt with at 31 separate sentencing episodes. As mentioned earlier, he is currently 58 years of age. Criminal and other offending has been a part of his life for almost 70% of it. Put another way, his offending has seen the imposition of head custodial terms in the amount of 11 years and two months, which represents almost 20% of his life.
The Direction presents me with a conundrum of whether to apply the auspices of paragraph 8.1.1(1) of the Direction to both the offending in New Zealand and Australia or whether the Direction only applies to Australian offending. The conundrum derives from a reality that the first mention of a non-citizen’s offending abroad in paragraph 8.1.1(1) occurs at the very end of it – that is, paragraph 8.1.1(1)(h). Apart from the overarching reference in the abovementioned principle 5.2(3) to offending by a non-citizen “elsewhere”, nowhere in the language of paragraph 8.1(1) of the Direction prior to paragraph 8.1.1(1)(h) is there any reference to a non-citizen’s offences committed in another country. This is why I am cautious about applying paragraph 8.1.1 of the Direction to the New Zealand offending, save and except, of course, as required in a residual sense by paragraph 8.1.1(1)(h).
Out of an abundance of caution to avoid jurisdictional error, I will apply the auspices of paragraph 8.1.1(1) of the Direction to the Applicant’s offending in Australia. I will then, as part of my consideration of paragraph 8.1.1(h) make reference to the Applicant’s offending in New Zealand for the purposes of assessing, in overall terms, the nature and seriousness of the totality of the Applicant’s unlawful conduct, both here and in New Zealand.
Paragraphs 8.1.1 considerations: the nature and seriousness of the conduct
Sub-paragraph 8.1.1(1)(a): as mentioned earlier, the Applicant has 15 convictions in Australia. The first to seventh convictions are for driving/traffic offences, as are his 10^th to 13^th convictions. The eighth conviction is for property offending. The ninth, 14^th and 15^th convictions are for drug offending. The first of those was for possession of a prohibited drug and the latter two – and by far his most serious offences in Australia – are for ‘supply cannabis >indictable & <. commercial quantity’ and ‘supply prohibited drugs on an ongoing basis’.
While the chapeau to the three categorised forms of offending immediately following paragraph 8.1.1(1)(a) of the Direction stipulates that offences in any of these three categories must be found to be very serious, none of the Applicant’s Australian offending falls within any of those three categories. It would, to my mind, usurp the scope and intention of the Direction to suggest or find that the nature and extent of the Applicant’s drug offending in Australia – particularly the two offences for which he was convicted in June 2020 – are anything other than very serious conduct.
According to the ‘Crown Facts on sentence’ this was offending that involved the Applicant and his co-accused supplying ‘prohibited drugs, namely methylamphetamine and cannabis leaf, seven days a week’.[21] Further, this document points out that in terms of the Applicant’s involvement in this commercial drug enterprise: ‘during the period between April and July 2018, the offender supplied both methylamphetamine and cannabis leaf for financial gain…’[22] With specific reference to the Applicant’s conduct in the supply of methylamphetamine, this document goes on to record that:
‘Supply of methylamphetamine
The [Applicant] supplied amounts of methylamphetamine between 0.1g and 10.5g. In three consecutive 30 day periods the offender supplied methylamphetamine on 41 occasions. The total quantity supplied during this period was approximately 43.6grams.’[23]
[21] G1, p 221.
[22] G2, p 222.
[23] G2, p 222, [11].
With specific reference to the Applicant’s conduct in the supply of cannabis leaf, this same document records the following:
‘…Supply 4.27kg of cannabis leaf between 23/4/18 and 26/7/18
During this period the accused also frequently supplied cannabis leaf. Each individual supply of cannabis leaf was for an amount totalling between 6 and 10 ounces per week. The offender also sold small quantities of cannabis leaf including sales of 1 to 2g.’[24]
[24] G2, p 223.
While this type of offending does not necessarily fall within the ambit of paragraph 8.1.1(1)(a)(i), (ii) or (iii), it does not mean that this conduct cannot be found to have been very serious. This is because the chapeau to paragraph 8.1.1(1)(a) contains the words ‘without limiting the range of conduct that may be considered very serious…’. To my mind, these words confirm that a decision maker can make a finding about the very serious nature of a non-citizen’s unlawful conduct even if that conduct does not fall within the auspices of sub-paragraphs (i), (ii) or (iii) of paragraph 8.1.1(1)(a) of the Direction.
I am hard-pressed to become convinced that the above-described type of crimes and/or conduct that came before the Parramatta District Court for sentencing on 26 June 2020 would not be viewed as anything other than ‘very serious’ by the Australian Government and the Australian community. I so find.
Sub-paragraph 8.1.1(1)(b): none of the Applicant’s unlawful conduct, committed either here or in New Zealand, caused a person to either enter into or otherwise be a party to a forced marriage.[25] There is no suggestion in the evidence that any of the Applicant’s crimes in Australia were committed against vulnerable members of the community such as the elderly or disabled or government representatives or officials in the performance of their duties. [26] Further, the Applicant has not been responsible for conduct capable of grounding a finding that he does not pass an aspect of the character test that may be dependant on this decision-maker’s opinion. [27]There is no contention propounded by the Respondent to the effect that this Applicant has committed some type of crime while in immigration detention or that he has otherwise offended against the laws and regulations governing his time in immigration detention. [28]
[25] Sub-paragraph 8.1.1(1)(b)(i).
[26] Sub-paragraph 8.1.1(1)(b)(ii).
[27] Sub-paragraph 8.1.1(1)(b)(iii).
[28] Sub-paragraph 8.1.1(1)(b)(iiii).
While the balance of the Applicant’s Australian offending does not necessarily fall within the ambit of paragraph 8.1.1(1)(b)(i), (ii), (iii) or (iv), it does not mean that this conduct cannot be found to have been serious. This is because the chapeau to paragraph 8.1.1(1)(b) contains the words ‘without limiting the range of conduct that may be considered serious…’. To my mind, these words confirm that a decision maker can make a finding about the serious nature of a non-citizen’s unlawful conduct even if that conduct does not fall within the auspices of sub-paragraphs (i), (ii), (iii) or (iv) of paragraph 8.1.1(1)(b) of the Direction.
This ‘balance’ of the Applicant’s offending involved persistent offending in the realm of the ownership/management and/or control of a motor vehicle on Australian carriageways. It also involved respective convictions for property offending and possession of illicit drugs. Once again, I am hard-pressed to become convinced that the above-described ‘balance’ of the Applicant’s offending involving the commission of 13 offences dealt with at seven sentencing episodes would not be viewed as anything other than ‘serious’ by the Australian Government and the Australian community. I so find.
Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on the Applicant for:
(a)any violent offending he may have committed against women or children; [29]
(b)acts of family violence;[30] and
(c)conduct whereby he caused a person to enter into (or become party to) a forced marriage.[31]
[29] Direction, paragraph 8.1.1(1)(a)(ii).
[30] Direction, paragraph 8.1.1(1)(a)(iii).
[31] Direction, paragraph 8.1.1(1)(b)(i).
The Applicant’s offending that came before the Parramatta District Court for sentencing in June 2020 attracted the imposition of a head custodial term of four years with a non-parole period of two years and six months. It is well-established that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and must be viewed as a reflection of the objective seriousness of the offending.[32]
[32] PNLB and Minister for Immigration and Boarder Protection [2018] AATA 162 at [22].
To properly understand the basis of the learned Judge Craigie’s SC sentencing of the Applicant, it is necessary to have regard to His Honour’s remarks with particular reference to the offending committed by the Applicant in the context of the overall unlawful and commercially-oriented enterprise. His Honour’s reference to a ‘sequence’ comprises a detected instance of the Applicant actually committing the offending to be sentenced. Interestingly, for the three ‘sequences’ of offending, His Honour thought something in the order of eight to nine years of head custodial time was appropriate.
Be that as it may, His Honour no doubt took into account the requirement to be proportional in the imposition of a head sentence and arrived at the abovementioned formula of four years as a head term with a non-parole period of two and a half years. There is little to be said by the Applicant that would dissuade this Tribunal from a finding that the nature and extent of the sentence imposed by Judge Craigie SC on 26 June 2020 most certainly speaks to the very serious nature of the Applicant’s offending sentenced on that day.
Sub-paragraph 8.1.1(1)(d): the first inquiry compelled this sub-paragraph requires a response to the question of whether the Applicant’s offending in Australia has been frequent. There are 15 convictions in a sentencing history spanning (in sentencing terms) the period March 2006 to June 2020. The offending was delt with at eight separate sentencing episodes. The Applicant committed 15 offences in an approximate 13–14-year period. This is plainly frequent offending although it must be said that it is not offending committed on an overwhelmingly frequent basis.
The second inquiry compelled by this subparagraph involves a determination of whether the offending betrays any trend of increasing seriousness. The second inquiry produces a much clearer result: without question, the offending certainly does show such a trend. The first seven of his 15 convictions in Australia are for largely petulant and ignorantly committed driving/traffic offences. Looking at these specific offences on a cumulative basis, the only conclusion to be reached is that for the approximate three-year period, the Applicant committed these offences, he point-blank refused to meet the requirements of owning and operating a motor vehicle on Australian carriageways.
But that was not the end of the traffic offending. He has similarly-derived convictions in March and June 2016 for almost identical driving/traffic offences. The trend of increasing seriousness arises from the relatively simple exercise of counterpointing his driving/traffic offending against (1) his property and drug possession convictions in November 2013; and (2) his abovementioned commercially-derived drug supply convictions in June 2020. There is thus nothing to be said against this Tribunal’s finding that this sub-paragraph 8.1.1(1)(d) of the Direction points to the very serious nature of the totality of the Applicant’s offending in Australia.
Sub-paragraph 8.1.1(1)(e): this sub-paragraph looks for any cumulative effects to be gleaned from the Applicant’s repeated offending. As best as I understood the evidence, four such cumulative effects can be safely found. First, the movement of commercially-sized quantities of illicit drugs undoubtedly gives rise to grave consequences for the Australian community. It is well-established that addiction to mind-altering illicit substances often results in dreadful outcomes for addicts, the loved ones around them and innocent members of the community going about their business but who nevertheless are victimised as a result of the all-too-frequent irrational conduct that such substances manifest in addicts.
Second, one need not look too deeply into the nature and extent of the police investigation into the criminal drug-supply enterprise of which the Applicant was an important part to understand the level of policing resources allocated to (1) investigation; (2) detection; (3) apprehension; and (4) prosecution of the criminality represented by that unlawful enterprise. Similarly, one need only look at the very comprehensive sentencing remarks of His Honour Judge Craigie SC (numbering some 40 pages) to understand the extent of judicial sentencing resources allocated to the punishment of individual members (including the Applicant) who were apart of this unlawful enterprise. It is thus both safe and reasonable to find that a further cumulative effect of this Applicant’s offending involves its consumption of well more than its fair share of the communities policing and judicial sentencing resources.
Third
, the Applicant’s driving/traffic history is clearly a matter of concern. That history is multi-dimensional. It involves an abject failure to meet the regulatory and/or statutory requirements compelling road-users to be duly licensed and to otherwise not drive if disqualified from doing so. Further, this driving/traffic offending has exposed other people to unnecessary risk. He has at least two convictions for not properly restraining a

minor-aged passenger. Further still, while the Tribunal has no definitive expertise on the topic of compulsory or licensed third party insurance in New South Wales, it must surely be the case that insurance cover for loss and damage occasioned to other road-users by either or both an unregistered vehicle or an unlicensed driver would be placed in some kind of jeopardy.
Fourth
, the Applicant’s Australian offending is not the unlawful conduct of a young man. He committed his offences in this country during a period of his life spanning his early to

mid-40’s until his mid-50’s. This is not the offending of an errant youth yet to experience the impact of the sentencing process. It is the offending of a person committed while in their middle age. This longitudinal element to the offending is augmented and made more serious by the nature and extent of his criminal offending in New Zealand. The pattern of offending and consequential sentencing episodes was not new to him when he came here. He had an established pattern of virtually 20 years of such a pattern in New Zealand. This specific cumulative effect of the Applicant’s offending is one that exposes him to a finding of his being an archetypal career criminal.
Fifth, it can be safely found that the Applicant has failed to experience any sort of deterrent effect from the nature and pattern of sentences progressively imposed upon him. The vast majority of his offending in Australia was punished by exclusively non-custodial sentences. It is not enough for him to say that those non-custodial sentences derived from driving/traffic offending. At least two of those convictions involved a property offence and a drug possession offence, both of which attracted non-custodial bonds. The Applicant learnt nothing from the non-custodial nature of those sentences and proceeded to engage in the very serious and commercially-derived drug supply activity that attracted a head custodial term of four years.
Once again, the nature and extent of the Applicant’s failure to take any deterrent effect from the progressively-applied sentencing regime imposed upon him is augmented by the nature and extent of the sentences imposed on him for his offending in New Zealand. When he arrived here in 2004 he was certainly no stranger to receiving custodial terms for his offending. As I have mentioned above, some seven years and two months of head custodial time were imposed upon him for his offending in New Zealand. What is all the more astonishing is that not only did he abjectly fail to experience any deterrent effect, he proceeded to earn his livelihood from a very serious drug-supply criminal enterprise. In other words, he had no hesitation in turning to supporting himself by a significant involvement in the unlawful activity for which he had previously received his most significant sentences.
I am satisfied that the above elements squarely engage the operative effect of

sub-paragraph 8.1.1(1)(e) and that it in turn, volubly speaks to the very serious nature and extent of the Applicant’s unlawful conduct in this country.
Sub-paragraph 8.1.1(1)(f): the Applicant readily concedes his provision of false information to the Respondent’s Department on nine incoming passenger cards that he completed and submitted during the period 19 December 2004 to 17 December 2005. [33]The basis of the concealment involved the now-familiar response of ‘No’ to the question of ‘If you are NOT an Australian citizen, do you have any criminal conviction/s?’ By that time he had most certainly established his criminal history in New Zealand but did not have any convictions in Australia. To his credit, the Applicant does not resort to and otherwise rely upon any vacuous argument or excuse that he did not think his New Zealand offending was covered by an incoming passenger card he was compelled to fill out and provide to the authorities at the Australian border.
[33] G1, pp 110 – 118.

Instead, the Applicant readily conceded the following in a hand-written attachment to his PCF:
“…Again my decision to not declare my prior convictions was born out of fear of not being able to see my daughter. At the time I was providing support to her mother by way of caring for Shanara. Giving her mother emotional support whilst our daughter received medical care.
My failure to declare my prior convictions on those a [sic] occasions was a failure in judgement by myself. Displaying no regard for the Australian laws and only thinking about my own interests.”[34]
[34] G1, pp 173 – 174.
This sub-paragraph 8.1.1(1)(f) must inevitably weigh in favour of a finding that the nature and extent of Applicant’s criminal offending has been very serious. That said, I will moderate the extent of the weight allocable to this particular sub-paragraph on the basis of the Applicant’s frank and forthright concession about the circumstances in which he came to knowingly complete the subject passenger cards with incorrect information.
Sub-paragraph 8.1.1(1)(g): as best as I understood the material, there is nothing before me to indicate the Applicant has received any written formal warning from anyone about the consequences his commission of further offences in terms of his migration status to remain in Australia. While the absence of a warning is not to be considered an element favourable to the Applicant, I will nevertheless put this sub-paragraph to one side and render it of neutral weight for the instant determination.
Sub-paragraph 8.1.1(1)(h): I have earlier in these reasons summarised and articulated the extent of the Applicant’s criminal history in ‘another county’, that being New Zealand. [35] There is little or nothing to cavil with the proposition (and finding) that the Applicant’s offences or conduct in New Zealand would be ‘… classified as an offence [or unlawful conduct] in Australia’. An application of the componentry of paragraph 8.1.1(1) of the Direction would undoubtedly give rise to a finding that his New Zealand offending has been serious, more likely very serious. In particular, and without delving too deeply into the New Zealand offending:
·the sentences imposed for his unlawful conduct are significant and volubly speak to its level of seriousness;
·it was frequently committed and undoubtedly reaches a crescendo of seriousness in its latter phases; and
·the cumulative effects of his offending in New Zealand would, to my mind be analogous, but broadly identical to the effects of his offending in Australia.
[35] See [26] – [27] of these Reasons.
The Applicant’s offending in New Zealand, read cumulatively with offences he has committed in Australia does speak volubly to the very serious nature and extent of the totality of his offending. The New Zealand offending more significantly brings into focus the longitudinality of all of his offending. It also more readily defines the Applicant as a career criminal who has breached the boundaries of the law for almost 40 of his 58 years thus far. There is no other way to typecast an individual who has spent 70% of his life committing offences and whose offending has resulted in cumulative head custodial terms representing almost 20% of his life thus far.
Thus, I apply the auspices of this sub-paragraph 8.1.1(1)(h) towards a finding that the totality of the Applicant’s unlawful conduct has indeed been of a very serious nature.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence before me to the extent that such evidence and Direction componentry relate to the offending in Australia. I am satisfied that those relevant paragraphs safely lead me to the conclusion (and finding) that the totality of the Applicant’s unlawful conduct in this country can be found to be very serious. I so find. This finding is augmented and reinforced by the findings I have made (pursuant to paragraph 8.1.1(1)(h) of the Direction) in relation to the Applicant’s offending history in New Zealand.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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 of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(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 non-citizen reoffending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence…..; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
As I understood the respective positions of the parties on this issue, they are both saying that adverse consequences or actual ‘harm’ would result in the event of the Applicant
[36] A1 p 3,[16].
[37] Ibid [21].
[38] Ibid, p 4, [22] – [26].
re-committing the offences for which he has previously been charged and convicted but that they are doing so on different grounds. The Applicant reaches this position on a largely concessional basis in the form of accepting ‘… the Applicant had a substantial criminal record in New Zealand…’[36] and by readily conceding ‘… the Applicant’s criminal record in New Zealand are [sic] serious in nature’.[37] A similar concession is made in relation to the Applicant’s offending in Australia. [38]
The concession about the Australian offending culminates into a concession that:
·[the Applicant] supplied methylamphetamine on 62 occasions. Total supplied was approx. 67.55g
·[the Applicant] supplied cannabis on a total of 135 occasions. Total quantity 4.27kg’ [39]
[39] Ibid [27].
It would be astonishing if the Applicant were to now suggest that offending of this type – if recommitted by him now – would not result in harm to individuals or the Australian community. I understood the Applicant’s position to be one of accepting that his past offending has resulted in harmful consequences for both individuals and the Australian community and that any recommission of such conduct should be regarded as being so serious by this Tribunal such that any risk of its recommission may be unacceptable.
The Respondent takes a more prescriptive approach and forms a view about the nature of harm arising from any further offending by reference to either a particular offence or category of offences. For example, the Respondent contends ‘… the harm caused if the Applicant were to again commit crimes involving the trafficking of illicit drugs could range from serious to grievous physical, psychological and financial harm to members of the community’. [40] The Respondent goes on to contend that ‘… further unlawful driving and theft related offences… may endanger other members of the community and cause disruption to their lives’. [41]
[40] R1, p 11, [51].
[41] Ibid [52].
My anticipation is that neither side would cavil with these sorts of findings about the nature of harm ensuing from further very serious unlawful conduct by this Applicant. Were he to again involve himself in a commercially-derived and oriented drug supply/trafficking venture, very serious and significant harm would result to individuals, their families and other loved ones and to the community’s policing, judicial sentencing and heath care apparatuses. Were he to again commit property offences, the individuals to whom that property belongs would suffer material financial loss as a result of being deprived of the ownership and usage of those items of property that rightfully belong to them.
Were the Applicant to again wantonly ignore the rules and regulations relating to the ownership, management and control of a motor vehicle on Australian carriageways then significant harm would befall passengers travelling with the Applicant as well as other road users both in terms of physical harm and in terms of material or monetary harm in the event of any difficulty in relation to indemnification resulting from the Applicant driving unlicensed, driving while disqualified and/or driving an unregistered vehicle.
I anticipate no cavilling from either side if I were to find that were the Applicant to reoffend in any of the abovementioned realms, then very serious physical, psychological – and potentially catastrophic harm – would be suffered by its victim(s) and any other party indirectly exposed to it. I have no difficulty in concluding that the Applicant’s drug supply/trafficking convictions are so serious such that any risk of his re-commission of such conduct would be totally unacceptable to the Australian community. I so find in relation to both of these items – that is, (1) the nature of resulting harm in the event of re-committed offending and; (2) the unacceptability of any risk of re-commission of such conduct.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Respondent’s position on recidivist risk
The Respondent contends the Applicant presents ‘… an unacceptable risk of reoffending and causing significant harm..’.[42] That submission is put on the following grounds. First, the Respondent points to the historical nature of the Applicant’s difficulties with the abuse of illicit drugs, and in particular the findings of Dr Kwok that his diagnosed substance use disorder ‘… was a predominant factor contributing to his offending…’. .[43] The Respondent complements this submission by pointing to the sentencing remarks of Judge Craigie SC who noted and took into account the longitudinal nature of the Applicant’s substance abuse wherein His Honour found that the Applicant was regularly using ‘ice’ from 2012 until his arrest in 2018. The essence of this submission – as best as I understood it – is that the Applicant has not overcome his difficulties with illicit substance abuse and continues to represent an unacceptable recidivist risk because virtually of his very serious offending was committed while under the influence of illicit drugs.
[42] R1, p 11 [53].
[43] Ibid, p 12 [53].
Second, the Respondent attacks the findings of Dr Kwok involving her assessment that he poses a moderate recidivist risk. This attack derives from two things: (1) Dr Kwok’s assessment is ‘unacceptable’[44] because of the nature and extent of harm that would befall a future victim(s) of the offending; and (2) Dr Kwok’s predication of her finding of a moderate recidivist risk on the Applicant maintaining a ‘… proactive engagement with an intervention that specifically targeted his drug and alcohol use, emotional symptoms and gaining pro-social activities, and also a referral to a psychologist for counselling’. [45] A corollary of this contention is that Dr Kwok’s findings made in 2021 should now be considered old and
[44] Ibid [55].
[45] Ibid [55].
out-of-date and that there is otherwise insufficient evidence of the Applicant’s engagement in any demonstrated rehabilitative process.
Third, the Respondent dismisses any contention that the eight to nine months the Applicant has spent in the community both offence–free and free of any issues involving illicit substances and/or alcohol and that it ‘should carry little weight in the circumstances’. [46] This is because (says the Respondent) the Applicant is, in effect, hiding from the border force authorities because he has not self-reported to them and nor has he voluntarily departed Australia. It is said by the Respondent that ‘… The applicant’s recent time in the community is not a meaningful test of what the applicant’s behaviour may be like in the long term’. [47]
[46] Ibid, p.13, [57].
[47] Ibid.
Fourth, the Respondent urges the Tribunal to reject any suggestion that the Applicant’s offending has been or can be attributable to traumatic experiences in his past. The Respondent accepts that ‘… past events may have caused difficulty and disruption in his life…’ [48] but that his predisposition towards a consistent disregard for the law and his long pattern of criminal offending effectively crowd-out any finding that past traumatic experiences should now be accepted as a primary causative element behind his past offending. The Respondent says that life’s inevitable pressures and exigencies will again confront the Applicant and that ‘… there is… insufficient evidence for the Tribunal to be satisfied that the applicant is adequately equipped to react to them in an appropriate way’.[49]
[48] Ibid, [58].
[49] Ibid
Fifth, the Respondent develops and puts a contention that the Applicant’s demonstrated failure to experience to any deterrent effect from past sentences and to otherwise experience any sort of rehabilitative epiphany thus far should compel this Tribunal to find his recidivist risk to be unacceptable. The Respondent concedes Judge Craigie’s optimism about the Applicant’s recidivist prospects but seeks to play down His Honour’s optimism because ‘… His Honour was seemingly unaware of the Applicant’s significant and lengthy criminal history in New Zealand’. [50] The Respondent further contends that if the Applicant’s New Zealand[51] criminal history had been known to Judge Craigie SC, then His Honour’s ‘…views as to the applicant’s prospects of rehabilitation may well have been more guarded’.
[50] R1, p 14, [59].
[51] Ibid.
Sixth, the Respondent urges the Tribunal to reject any contention that the presence of the Applicant’s family will play any sort of positive role or be any kind of positive influence in terms of recidivist risk. The contention is predicated on a suggestion that those family members were available to, and otherwise around, the Applicant at the time he committed his very serious drug supply/trafficking offences. The prospects of his family speaking positively to his recidivist risk are, the Respondent contends, not convincing.
On these essential grounds, the resulting position of the Respondent is that the Applicant represents an unresolved recidivist risk and that this Primary Consideration 1 ‘… weighs very heavily against revocation’.
The evidence of Dr Emily Kwok (Clinical and Forensic Psychologist)
Dr Kwok has furnished two written reports. The first is dated 30 August 2021 and relevantly appears in the material. [52] This first report resulted from a 1.5-hour consultation Dr Kwok had with the Applicant via telephone on 24 August 2021. In her usual thorough way, Dr Kwok took a long and detailed history of a number of facets on the Applicant’s life including (1) his family and personal history; (2) his educational and occupational history; (3) his drug and alcohol history; (4) his medical history (in terms of his physical health); (5) his mental health history; (6) his relationship history; and (7) his psychosocial history. Dr Kwok also made a detailed summary of the Applicant’s offending history.
[52] G1, pp 590 – 601.
In terms of a psychological assessment, Dr Kwok noted the Applicant ‘… described a general sense of hopelessness that he cannot help his family at this time and that he is also upset about his lack of control over his life. He stated that he would like to fulfill his responsibilities as a father and grandfather.’[53] This is, to my mind, a significant observation from Dr Kwok (made as it was in August 2021) because it anticipated the nature of the evidence given by the Applicant when the matter resumed before me on 3^rd August 2023 before me. I will have more to say about that when reviewing the Applicant’s evidence.
[53] G1, p 596, [41].
Part of Dr Kwok’s psychological assessment involved her noting that the Level of Service Inventory – Revised (LSI – R) testing methodology had been performed upon the Applicant in November 2020 and that he was found to be at a medium risk of re-offending. Critically, in taking note of this LSI – R risk assessment, Dr Kwok said in her report of August 2021 that:
‘Mr Lafaele has not returned to the community since that time [i.e November 2020], therefore, his dynamic risk factors (e.g. employment, leisure/recreation, accommodation, financial situation) remain the same. The finding of the LSI – R from November 2020 is, therefore, a valid measure of his current level of risk’.[54]
[My emphasis]
[54] Ibid, [44].
But of course, the Applicant has, since December 2022 returned to the community and has remained there on a continuous basis since that time. Further, Dr Kwok notes that in terms of protective factors, ‘… There are a few protective factors that reduce Mr Lafaele’s risk of relapse and re-offending if he is permitted to return to the community. This includes the availability of accommodation and family support’.[55] The current reality of the evidence is that these specific protective factors identified by Dr Kwok have actually come to pass and have featured in the Applicant’s life in the community from December 2022 until now.
[55] Ibid, [45].
In terms of a concluded opinion about recidivist risk, Dr Kwok found that ‘… In consideration of both protective and risk factors, it is my opinion that Mr Lafaele has a moderate risk of re-offending and his level of risk is trending toward the lower end’. [56] [My emphasis]. It is, to my mind, critical to note that Dr Kwok reached this opinion about the Applicant’s recidivist risk in circumstances where (1) the protective factors she identified (accommodation and family support) have now been realised and have featured in the Applicant’s life on a continuous basis from December 2022 until now; and (2) his dynamic risk factors have significantly changed since November 2020 when the LSI – R testing methodology was performed on him and which Dr Kwok has obviously used as a primary reference point in predicating her recidivist risk finding. One wonders what her recidivist risk assessment would now be if these two elements were put to her either in oral evidence or as written instructions for the provision of an updated report.
[56] Ibid, p 597, [46].
Dr Kwok responded to a question about whether the Applicant represents any risk, threat or danger to the Australian community in these terms: ‘Mr Lafaele is currently a moderate risk/threat/danger to the Australian community. His ongoing risk will depend on his engagement with, and responsiveness to, intervention to address his criminogenic needs.’[57] She thought the extent of the Applicant’s compliance with drug and alcohol intervention in prison, together with his engagement in mental health counselling meant that ‘…he is likely to seek rehabilitation for his substance problems post release’.[58]
[57] G1, p 597, [48].
[58] Ibid, [55].
Dr Kwok’s second report is dated 11 April 2022
and relevantly appears in the material.[59] The report is the product of a further interview Dr Kwok conducted with the Applicant on

4 April 2022 and was prepared for the purposes of obtaining an update on the Applicant’s psychological symptoms and his risk of re-offending. In terms of a psychological assessment, Dr Kwok notes these things:
·‘Mr Lafaele did not report any current psychological distress’;[60]
·‘Mr Lafaele stated that he does not want to return to drug and alcohol use, or criminal behaviours. He expressed that he regrets his offending behaviours, because it had affected “a lot of other families and the children of those families”’;[61]
·‘if he is permitted to remain in Australia, Mr Lafaele reported that he will initially live with his daughter and grandchildren at [suburb redacted], Sydney, and he hopes to return to work’. [62]
[59] A2, pp 21 – 26.
[60] Ibid p 24, [16].
[61] Ibid, [17].
[62] Ibid p 25, [19].

Again, these observations of Dr Kwok anticipated the Applicant’s evidence given when the hearing resumed before me on 3 August 2023.
In terms of the assessment of the Applicant’s symptoms, Dr Kwok asked him to complete the Symptom Checklist – 90 Revised (SCL -90-R) which she described as a ‘psychiatric self-report inventory’. [63] Dr Kwok concluded that ‘Overall, Mr Lafaele’s SCL-90-R symptom profile is not of a nature or magnitude to be considered in the clinical range’.[64] While the Applicant’s SCL-90-R symptom profile showed ‘a few isolated signs of depression and mild social alienation’, [65] Dr Kwok did not think that profile demonstrated anything ‘of a clinical magnitude’.[66]
[63] G1, p 25, [20].
[64] Ibid [21].
[65] Ibid.
[66] Ibid.
Dr Kwok then moved onto a formulation of recidivist risk and noted her previously-assessed ‘moderate risk of reoffending’ but that ‘his level of risk would reduce with ongoing abstinence from drug and alcohol use as well as engagement in counselling to help with managing his moods and stress’.[67] She effectively repeated her earlier recidivist risk assessment as ‘… a moderate risk of re-offending, and trending towards the lower end’. [68]Dr Kwok further noted that since her earlier report, ‘… Mr Lafaele’s period of abstinence from substance use has become longer although this is untested in the community’.[69] [My emphasis]. The reality of the evidence is that since December 2022, the Applicant has been in the community on an unconditional basis and his capacity to abstain from illicit substance abuse has been tested in the community.
[67] Ibid, [22].
[68] Ibid.
[69] Ibid.
Dr Kwok then noted that ‘If Mr Lafaele is permitted to return to the community, he will live with his daughter at [name of Sydney suburb redacted]. [70] She noted that ‘… He stated that he plans to look for work in Sydney and he will continue to help his daughter and grandchildren’.[71] This observation is analogous with the Applicant’s evidence given at the resumed hearing before me on 3 August 2023.
[70] Ibid, [23].
[71] Ibid, p 26, [23].
Dr Kwok also gave oral evidence at the hearing before me. She gave this evidence on the third hearing day of this matter in mid-December 2022 which pre-dates (by barely a week) the Applicant’s release from immigration detention on the basis of the Full Court’s decision in Pearson. Be that as it may, it is worth summarising her oral evidence for the purposes of these Reasons. Her evidence in chief primarily consisted of one question relating to her recidivist risk finding in which she noted that the Applicant’s risk is in the moderate range, trending towards the lower end of that range. She agreed that she intended to use the descriptor of ‘trending’ as an active verb – that is, in her opinion the Applicant’s downward trending risk level was in no way a static phenomenon but that it was an actually live trend.[72]
[72] Transcript, p 129, lines 29 – 36.
Also during her evidence – in – chief, Dr Kwok was asked whether she had seen or noted any contrary indications from the Applicant against the trend she had identified. She replied with ‘No, I have not’. [73]
[73] Ibid, line 39.
Dr Kwok was also cross-examined. An initial challenge to Dr Kwok’s written evidence was sought to be mounted on the basis of (1) the nature and extent of the material briefed to her by the Applicant’s legal representatives; and (2) the length of time she spent interviewing the Applicant. To my mind, both of these challenges largely went nowhere. Practitioners such as Dr Kwok are expert clinicians. Perhaps more to the point, they are expert witnesses in cases like this which compel a decision-maker to make definitive findings about a person’s recidivist risk. Dr Kwok knows what the Tribunal has to do and what she has to do to assist the Tribunal to complete its task.
If Dr Kwok thought she had been insufficiently briefed and/or that she did not have enough time with the Applicant, I am confident she would have made any such shortfall(s) known to either the Applicant’s legal representatives or to this Tribunal via her report(s). There is no such complaint from her. Further, Dr Kwok’s level of clinical experience is such that the nature and extent of written materials provided to her together with her ‘one on one’ time with the Applicant would have been sufficient for her to write the reports she wrote and to reach the conclusions she reached.
Dr Kwok agreed that the Applicant’s level of recidivist risk will be dependent on his proactive engagement with rehabilitative intervention in the form of a drug and alcohol addiction program. [74] She was asked about an apparent conflict between the Applicant’s evidence and hers that was said to have arisen during the course of this hearing. In particular, Dr Kwok was taken to the Applicant’s oral evidence in which he disagreed with her assessment of him having a ‘moderate’ recidivist risk and that he thought he represented a ‘very low’ [75] recidivist risk. Dr Kwok was not too concerned by this apparent anomaly in the evidence and said:
“---I would recommend that his risk factors would be included as part of the treatment, or in other words, that these are explained to him in treatment. I understand that Mr Lafaele has agreed to engage in that treatment, and he made need further education about his level of risk. I am not too concerned if he is engaged in treatment for that education to be provided. I would suppose that Mr Lafaele is expressing possible, expressing his intentions, or his willingness to not reengage in problematic behaviours, and he may just need greater insight into his risk fact.”[76]
[74] Ibid, p 131, lines 36 – 38.
[75] Transcript, p 99, lines 25 – 32.
[76] Ibid, p 132, lines 4-12.
Dr Kwok was then asked to confirm that what appears in her report about the Applicant’s attempts to obtain counselling at the Christmas Island detention facility was exclusively based on what he told her. She confirmed that she did not review any documentary evidence to corroborate what the Applicant had said to her about that and nor did she make any inquiries with the health staff at the Christmas Island detention facility about this issue.[77] A similar set of questions were put to Dr Kwok about the Applicant’s attempts to source and engage with counselling at the Yongah Hill detention facility near Perth.
[77] Ibid, p 132, lines 27 – 40.
I am not certain where, if anywhere, this line of questioning took Dr Kwok’s evidence. It would not be safe or fair impugn her evidence on the basis that two elements in her report[78] were the subject of responses she took from the Applicant. The letter of instructions furnished to Dr Kwok prior to preparation of her first report appears in the material. [79] There is little or nothing to cavil with the suggestion that Dr Kwok was indeed fulsomely briefed with sufficient material to understand the nature and extent of her task. There is nothing untoward in her not personally venturing beyond that material to elucidate details about the extent of the Applicant’s engagement with rehabilitation at either Christmas Island or Yongah Hill.
[78] That is, the Applicant’s evidence to source and obtain rehabilitation at Christmas Island and Yongah Hill.
[79] G1, p 585.
The evidence of the Applicant
The Applicant provided oral evidence in chief on three out of the total of five hearing days over which this hearing was conducted. The first two of those hearing days respectively took place on 26 and 27 May 2022. The third day on which the Applicant provided oral evidence was on 3^rd August 2023. To my mind, the span of time between the second and third days on which he provided oral evidence is significant because the third day post-dates the Applicant’s release from immigration detention (on the basis of Pearson) by some nine months. Put simply, he gave evidence on the earlier two days of the hearing as a detainee while he gave evidence on the third day of the hearing as a member of the mainstream Australian community[80] who was in that community on a largely unconditional or unfettered basis.
[80] Albeit on the basis of an unresolved visa status.
While I accept the Applicant gave evidence earlier in the proceeding (i.e in mid-2022), my primary focus in terms of reviewing the Applicant’s oral evidence is in looking at his evidence given on 3^rd August 2023. The Applicant’s evidence proceeded on the basis of (for all intents and purposes) a resumed cross-examination by the Respondent’s representative. The initial question involved a suggestion that since the date he previously provided evidence to this hearing, he had not engaged with a rehabilitative process. The Applicant responded by saying it was well-nigh impossible to source and obtain counselling at either Christmas Island or Yongah Hill. [81]
[81] Transcript, p 171, lines 29 – 47; p 172, lines 1 -2.
The Applicant was then asked to explain why he had not more fulsomely engaged in rehabilitation from 27 May 2022 up until the time of his release from immigration detention at the end of 2022. To my mind, the Applicant adequately delt with these questions by responding in these terms:
“MR BURKE: Mr Lafaele, after 27 May 2022, which is the day you last gave evidence to the tribunal – so after that date up until when you were released from immigration detention at the end of last year, it’s the case, isn’t it, that you regularly decided not to attend sessions relating to your mental health that were scheduled for you. You would agree with that, wouldn’t you?
APPLICANT: ---I did attend a few of the counselling sessions after witnessing a suicide, but the counselling sessions was enough to help my mental health, focus on my family. It’s just at that time I did do some counselling sessions, and then they asked me if I needed any more and I said no. I – I have always dealt with it personally on a personal scale and with the help from the counsellors. They gave me enough to deal with the situation at the time, because my mental health wasn’t too good at the time. Yes. “[82]
[82] Transcript, p 172, lines 9 -20.
The Applicant confirmed that he was residing at an address in western Sydney and that he has always been frank and open with the authorities about where he resides, making sure they have his mobile telephone number and otherwise making sure they know where to find him if and when they need to do so.
“MR BURKE: Where have you been living, Mr Lafaele?
APPLICANT: ---At the address I gave Australian Border Force when they released me, [address redacted], and a representative from Immigration Canberra, they gave me a phone to talk to him and he asked me for the address, my mobile phone number, and that’s the address I gave to the Immigration from Canberra on the phone with Australian Border Force standing next to me, at my daughter’s house.”[83]
[83] Ibid, lines 30 – 35.
The Applicant was then taken to a letter in the material provided by the Respondent’s Department which is dated 17 February 2023. [84] As I understood the questions around this letter, they were intended to establish that the Applicant was somehow unlawfully residing in the Australian community and that he had otherwise failed to comply with the terms of that letter. As an initial finding, I reject any suggestion that the Applicant sought to deliberately conceal his whereabouts from the authorities. When he came back into the community, he told them where he was living and he provided them with his mobile telephone number. None of those details have changed. They know where to find him if they wish to apprehend him and return him to immigration detention. To date, they have not done so.
[84] R2, pp 11- 13.
The Applicant (1) agreed that he received this letter; (2) that he had read part of it; (3) that he, perhaps incorrectly, understood it to mean that he had at least had some kind of visa status to remain in Australia; and (4) that he was anxious to be reunited with his family which, in turn, compelled him to not read the balance of the letter: [85]
“MR BURKE: Mr Lafaele, this letter dated 17 February 2023 from the Department of Home Affairs, you read the letter, didn’t you?
APPLICANT: ---Just the first paragraph and the thick lettering at the – underneath my name. I didn’t really understand the rest of the letter that I was reading. It’s only the top bit there that my visa cancellation (indistinct) seeking review. I – I just thought that I was reinstated with a visa when they released me.
MR BURKE: So, Mr Lafaele, after receiving this letter, what was your understanding of your visa status?
APPLICANT” ---That they were going to review my visa cancellation decision. I – I – that’s what I thought it was, was they gave me a visa a month and a half before, a TY444, special category visa, and when I received this letter, I only read that top bit and I’m thinking of, you know, what to do. Why did they cancel my visa? You know, I – I was already in – under enough stress just being reunited with my family, and seeing that, it just – I didn’t continue reading the whole letter. I just thought, you know, why are they cancelling my visa when they reinstated me with it. I did nothing wrong.”[86]
[85] Transcript, p 174, lines 30 – 46.
[86] Transcript, p 174, lines 30 - 46.
There followed a series of contested objections from Counsel for the Applicant about the efficacy or validity of putting questions of an expert or legal nature to the Applicant in terms of the impact of Pearson and/or the MAAS Act on his visa status to remain here / in the community in circumstances where the Applicant had no inkling that he would be released from immigration detention in late December 2022 and otherwise expected his matter to be resolved upon a determination by this Tribunal. How can an (with due respect) Applicant unsophisticated in the legal and procedural elements of this case possibly be expected to reconcile the interplay between his Pearson release in late December 2022 and the terms of the letter he received in or about 17 February 2023? While I do not criticise the terms or mode of drafting of this letter, I do not consider it adequately explains this interplay to an unsophisticated non-citizen. I am likewise not suggesting that explaining this interplay to a lay person is a straightforward matter.
To my mind, this questioning about the letter of 17 February 2023 went largely nowhere. Upon questioning from me, the Applicant said that when he received the letter, he only read the bold and capitalised part under the words ‘Dear Mr Albert LAFAELE’. [87] He accepted that the letter was a ‘bad news letter’ but that he otherwise understood that:
‘When I was given a reinstated visa on 30 December I thought I would be able to live normal, and then once I saw that it just stressed my whole family out, and I said to them later my visa got cancelled, and they go what. And yes, I just – I just – I knew, the first paragraph I knew there was something wrong.’[88]
[87] Ibid, p 180, lines 39 – 47.
[88] Ibid, p 181, lines 9 – 13.
His explanation for not knowing this letter ‘encouraged’ him to self-report to the Australian Border Force [89] was that he did not read up to that point in the letter. This evidence must, of course, be received with caution. But I think a more likely explanation is to be found in further questions I put to the Applicant, the sequence of which transpired thus in the evidence:
[89] See R2, p 12, first paragraph under the heading ‘Your options’.
“SENIOR MEMBER: Now, back to what I wanted to ask you. So you did not read ahead in the letter beyond the first half or third of the first page, so your evidence is that you did not know that you had to self-report to Australian Border Force, is that your evidence?
APPLICANT: ---Yes.
SENIOR MEMBER: If you did know that, would you have self-reported to Australian Border Force?
APPLICANT: ---Yes, sir.
SENIOR MEMBER: And is your evidence - and remember you’re on oath here – is your evidence really this, that you got your visa back, you came back into the community, and of course you would have been delighted with that development and happy, and then this letter comes along and you probably thought, oh no, not this again, and then you thought, well, they’ve got my address, they know where to find me, and if they really want to come and get me they know where to find me; is that really what your evidence is?
APPLICANT: ---Yes, sir. I thought that they knew where I was. Yes?---They would come and get me once my visa was cancelled, so I waited.
SENIOR MEMBER: Well, it’s more than that. It’s not you thought they knew where you were. You knew that they knew where you were, because you told them?
APPLICANT: ---I gave them my address, yes, sir.
SENIOR MEMBER: And you didn’t move from that address?
APPLICANT: ---No.
SENIOR MEMBER: And I’m sorry I’m not aware of this, but when you got your visa back and came into the community, were there any, like, reporting requirements upon you like parole, or did you just get your visa and sit in the community?
APPLICANT: ---There was no commissions. Right?---Just reinstated me with a TY 444 visa.
SENIOR MEMBER: Yes. And your evidence is, just to repeat it again, you thought this is probably all bad, this nightmare’s starting again; if they want me they know where to find me, and I’ll happily go along with them, let them come and get me; that’s your evidence really?
APPLICANT: ---Yes. I thought there was a mistake or something, so that’s – I thought I’ll just stick with my family and wait for them to come to the address. And, yes, I thought they knew where I was.”[90]
[90] Transcript, p 181, lines 37 – 47; p 182, lines 1 – 28.
The Applicant otherwise told the hearing (on 3 August 2023) that:
·he is not in receipt of any government benefits or assistance (as a non-citizen) and that he survives on ‘Anglicare, Salvos, Red Cross – they all help me out with food parcels, vouchers’;[91]
·if his Visa is reinstated, he will initially apply to Centrelink for benefits and then will look for work in his past vocation of warehousing/logistics and/or the Blacktown City Council in a strategic planning role to assist with the provision of housing for people. He made it clear the ‘… my main plan is just to go to work. I want to work. I can’t work without a visa’.[92] He also spoke of finding and doing work in labouring and furniture removal; [93]
·the residential support and additional financial support currently provided to him by his children and community charities will continue until he re-establishes himself as a self-supporting member of the community.[94]
[91] Transcript, p 182, lines 39 – 40.
[92] Ibid, p 183, lines 29 – 30.
[93] Ibid, 184, lines 24 – 25.
[94] Ibid, p 184, lines 31 – 34.
Findings about recidivist risk
I will firstly address the Respondent’s contended positions on recidivist risk (in the same order in which I addressed those contentions in the preceding narrative):
·it is to state the obvious that, as per Dr Kwok’s findings, difficulties with illicit substances have been the primary causative factor behind the Applicant’s offending. But it is a stretch of the evidence to suggest the Applicant’s longitudinal involvement with illicit drugs from 2012 until his arrest in 2018 means he now represents an unacceptable recidivist risk;
·the attack on Dr Kwok’s findings on the basis of (1) the extent of harm that would befall any future victim; and (2) a requirement that the Applicant maintain an ongoing connection with rehabilitation had little or no traction. It is, to my mind, trite to suggest that someone’s recidivist risk can be found to be unacceptable on the basis of what that person might in future do, or cause to happen, to a victim. It verged on the impossible for the Applicant to source rehabilitative treatment at Christmas Island or Yongah Hill detention centres. Despite that, he has spent almost nine blameless and offence – free months in the community without reoffending;
·I reject the contention that the Applicant’s recent time in the community is not a meaningful test of what his behaviour might be like in the long term. If almost nine months of virtually unrestricted and unfettered time in the community is not a sufficient test of a person’s recidivist risk, then what is? The Applicant is otherwise not hiding from the Australian Border Force authorities and if they want to find him, they know where he is;
·while Dr Kwok makes a note of the Applicant telling her about past traumatic experiences in his life, she does not make any definitive findings about the extent to which this reported trauma has been causative of either or both his substance abuse issues and/or his offending. The contention that life’s future contingencies and exigencies may cause the Applicant to relapse and/or re-offend, is now crowded-out by the reality of the passage of almost nine months of this Applicant being in the community, surviving on scraps of money from his family and food parcels from community charitable organisations. None of these contingencies/ exigencies have caused the Applicant to relapse or reoffend and there is little to suggest they will do so in future while he re-establishes himself;
·the contention about (1) the Applicant failing to experience any deterrent effect from past sentences; and (2) an apparent failure to experience any sort of rehabilitative epiphany should be received with caution. I reject the suggestion that these two elements now cause the Applicant to represent an unacceptable recidivist risk. He should receive the benefit of the almost nine months of largely unconditional and unfettered time in the community he has experienced to date which at no time has involved any suggestion of a relapse or return to illicit substance abuse. The contention about Judge Craigie SC perhaps sentencing the Applicant differently if His Honour was aware of the Applicant’s criminal history in New Zealand should be received with caution. This is so for two reasons: (1) the Respondent puts this contention no higher than His Honour being ‘seemingly’ unaware of the New Zealand history; and (2) the only person who can give definitive evidence on this point is Judge Craigie SC. There is no such evidence before the Tribunal. During the hearing (especially in its last two days) I was keen to know about whether the Applicant had undertaken any form of drug testing while he has been in the community since December last year. In a perfect world, it would have been good to have, for example, a couple of urine tests for April 2023 and July 2023 pointing to any trace of illicit substances in the Applicant’s system. As things transpired during closing submissions, no such test results were required because the Respondent’s representative readily accepted that the Applicant has not resumed taking drugs while in the community since December last year:
“MR BURKE: I think the starting point as we are here today, Senior Member, is that there’s no evidence that the applicant has resumed taking drugs. So the question is, ‘What is the prospect of the applicant relapsing and then posing a risk of committing further crimes as a result of his involvement in drug use?’ Is this - - -
SENIOR MEMBER: So you’re satisfied – okay. So I’m clear, it’s not an equivocal position from the respondent, is it? You’ve just told me – and don’t feel bound by this, but you’ve just told me that your position is that there is no evidence before the tribunal that, during this intervening eight period – eight-month period that he spent in the community that there has been a relapse or a return to abusing illicit drugs. There’s no evidence of that before the tribunal according to your submission made a moment ago. Is that right? Is that your position?
MR BURKE: I can’t submit, Senior Member, that the applicant has been taking drugs or has taken drugs at all over the eight-month period.
SENIOR MEMBER: Okay.
MR BURKE: I can’t point to any evidence - - -
SENIOR MEMBER: Okay.
MR BURKE: - - - to say that that’s the case.
SENIOR MEMBER: Thank you. Okay.”[95]
·I reject the contention that the presence of the Applicant’s family is not likely to play any positive role or be any kind of positive influence in terms of recidivist risk. While it may be said the Applicant committed his offences while his family was around him, this has not been repeated during his most recent nine months in the community. Indeed, his family have been fundamental in providing him with safe lodgings (presumably at no cost) and providing him with money to subsist. There is no doubting the positive impact his family have had on his recidivist risk since his release from detention in December 2022.
[95] Transcript, p 214, lines 30 – 46; p 215, lines 1 – 9.

Next, I will summarise the evidence of Dr Kwok and make findings about it:
·Dr Kwok (in her report from August 2021) found that the Applicant felt hopeless because he could not help his family at that time. She also noted that the Applicant wanted to fulfill his responsibilities as a father and grandfather. This is precisely what has occurred since the Applicant’s return to the community in December 2022. The evidence is replete with references to the Applicant’s participation in the lives of, in particular, his grandchildren. He is involved in their sporting commitments and other extra-curricular activities. He is no different to any other parent/grandparent standing on the sidelines of a local football park watching his grandchildren play junior sport;
·the LSI – R testing referred to by Dr Kwok in her first report was predicated on the basis that the Applicant had not returned to the community. He has now done so which would, surely, bode for an even more favourable LSI – R risk assessment if she conducted one on the Applicant today;
·Dr Kwok referred to (1) the availability of accommodation; and (2) family support as specific protective factors militating against the Applicant’s risk of relapsing and offending. In her first report, these factors were postulated as possible future protective factors. Both of them have now come to pass consequent upon the Applicant’s return to the community and he has not re-offended;
·in her first report, Dr Kwok found the Applicant represented a moderate risk of reoffending and that his level of risk was trending towards the lower end. This finding can now be safely amended (favourably to the Applicant) because (1) the protective factors she referred to have been realised; and (2) the dynamic risk factors on which the previous LSI – R test result was predicated (in November 2020) have now changed consequent upon the Applicant’s return to the community;
·in her second report (from April 2022) Dr Kwok said (1) the Applicant showed no signs of psychological distress; (2) the Applicant did not want to return to any form of substance abuse and criminal behaviour; and (3) that he would, if returned to the community go and live with his daughter in suburban Sydney. Each of these three things have occurred since the Applicant’s release from detention in December 2022. They have occurred without moment, interruption or any form of recidivist or other trouble; and
·in her second report, Dr Kwok repeated her extant recidivist risk finding of ‘moderate trending towards the lower end’. This second assessment was predicated on the Applicant’s capacity to abstain from illicit drug use being untested in the community (i.e as at April 2022). Of course, it now has been tested in the community since December 2022. The Applicant has duly demonstrated a capacity to so abstain.
Finally, I turn to the evidence of the Applicant, but with particular reference to any suggestion of a failure to meet the terms of the abovementioned letter dated 17 February 2023 he received from the Respondent’s Department.[96] For reasons I have given earlier, I am satisfied that (1) the Applicant’s contact details and whereabouts have, at all material times, been known to the authorities; (2) that he cannot be reasonably expected to digest and comprehend the interplay between his release in December 2022, his receipt of the subject letter and how both of those elements speak to the instant hearing; (3) he and his family have been caused to endure the lengthy challenge and uncertainty to his visa status arising from the instant proceeding; and (4) that he has not otherwise sought to deliberately conceal his whereabouts from the authorities.
[96] R2, pp 11 – 13.
Findings about recidivist risk
The totality of Dr Kwok’s evidence – both written and oral – was given prior to the Applicant’s return to the community in December 2022. To repeat, her finding about recidivist risk was expressed as ‘a moderate risk of reoffending and [the Applicant’s] level of risk is trending toward the lower end’. Having regard to the abovementioned factors – protective and otherwise – I am satisfied that the Applicant’s nine months in the community have accelerated that ‘trending toward the lower end’ such that this Tribunal can now safely allocate a level of recidivist risk to this Applicant that can be found to be a ‘low-moderate risk of reoffending with that level of risk trending further toward the lower end of that range’. I so find.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been, very serious;
(b)I have found that were the Applicant to reoffend in any of his previously convicted realms, then very serious physical, psychological – and potentially catastrophic harm – would be suffered by its victim(s) and any other party indirectly exposed to it. As a corollary to this finding, I have no difficulty in concluding that the Applicant’s drug supply/trafficking convictions are so serious such that any risk of his re-commission of such conduct would be totally unacceptable to the Australian community;
(c)I have found that Dr Kwok’s ‘moderate trending toward the lower end’ assessment of recidivist risk can now be amended such that this Applicant’s level of recidivist risk can now be safely re-assessed as a ‘low-moderate risk of reoffending with that level of risk trending further toward the lower end of that range’ .
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a certain, but not determinative level of weight against revocation of the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
In their respective written submissions, the parties ad idem that this Primary Consideration 2 is not relevant to the determination of the instant application. [97] The parties’ respective positions did not change in the course of their oral submissions. I agree with the respective positions of the parties and will treat this Primary Consideration 2 as not relevant to the instant facts, and accordingly, allocate neutral weight to it.
[97] See A1, p 9, [48]; see also R1, p 14, [63].
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in this paragraph 8.3. I will address each in turn.
The Applicant has a significantly-sized family in Australia. It would be both trite and confusing to a reader to seek to summarise the extent of his family in a paragraph or series of paragraphs. In short compass, it can be stated that the Applicant is the father to some nine children. All of his children, bar one, are adults. Six of the nine children are stepchildren and they are the biological children of a previous partner of the Applicant, Ms Maria Arama (deceased). Those six stepchildren are:
·Francis Angell (adult stepdaughter);
·Shaye – Ann (adult stepdaughter);
·Lataya Anahera Arama (Moneniq Angell) (adult stepdaughter);
·Ben Angell (adult stepson);
·Marama Angell (adult stepdaughter); and
·Jonathan Taivairanga (adult stepson)
The Applicant has three biological children from three different mothers. They are:
·Child BL (born July 2016 – minor biological daughter – her mother is Ms Rebecca Blanch);
·Chanel Arama (adult biological son – his mother is Ms Maria Arama);
·Shanara Lafaele (adult biological daughter – her mother is a person with whom the Applicant had a prior relationship).
In his sentencing remarks, the learned Justice Craigie SC summarised the extent of the Applicant’s immediate family in these terms:
“The report includes an account of the [Applicant’s] early marriage to his wife, Maria at the age of 17. He became a father at the age of 19. The couple eventually separated when the [Applicant] was 24, that was because his wife moved to Australia primarily. The [Applicant] then had a five year relationship with another partner by whom he had a daughter [Shanara], that daughter suffered physical and intellectual disabilities, she is now 24. The [Applicant] recommenced his relationship with his wife upon her return to New Zealand in 2002. The [Applicant] then came to this country with her. The [Applicant’s] wife had by now given birth to four further children by two other partners. The [Applicant], however, accepted those children as his own. Unfortunately the [Applicant’s] wife became ill, and in 2012 she succumbed to cancer and passed away.
In 2014 the [Applicant] met his present partner, Rebecca [Blanch], a widow also. The relationship initially began on the basis of the mutual support that they provided for their shared grief. The [Applicant’s] children eventually accepted the [Applicant’s] relationship from which he now has a daughter aged five. The offender's partner, Rebecca [Blanch], sustained a traumatic brain injury in a car accident shortly after their daughter's birth. The outcome and physical and mental health terms has meant that the daughter, [Child BL], has been placed in Family and Community Services care.
Prior to entering custody the offender's account was that he had become his own wife's carer. He remained close to [Child BL] when he was at liberty, visiting her every week. The offender in the report spoke fondly of all of his children and his grandchildren, and also reflected upon what he regarded as his active role in their lives. This is in stark contrast to his present status of conflict with the criminal justice system. Notwithstanding that, the offender spoke of his assistance in bringing up his children, including providing guidance for in what he termed to as his “Christian values”.[98]
[98] G1, p 70 – 71.
Thankfully, the material contains a family tree of the Applicant which shows each of his nine children (biological and stepchildren) and his grandchildren which are specifically referable to each of his biological and stepchildren. [99]This family tree is current as at 2021 and it gives the reader a pictorial rendition of the descriptive comments appearing in the several paragraphs preceding this one. Attached to these Reasons and marked ‘Annexure B’ is a true and correct copy of the subject family tree as it appears in the material save and except for the de-identification of any minor biological child or stepchild of the Applicant and any minor biological grandchild or stepchild I have also taken the liberty of advancing the respective ages of the minor children by two years.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
[99] G1, p 566. Note: I have de-identified the minor children in this family tree.
The first exercise is to identify the Applicant’s immediate family in Australia who are Australian citizens, permanent residents or people who have a right to remain in Australia indefinitely. As best as I understood the material, the Applicant has the following immediate family members in Australia.
His partner – Ms Rebecca Blanch. Ms Blanch has provided a hand-written statement which appears in the material. [100] In this hand-written statement, she makes it clear that she is providing this document
‘… in support of my partner Mr Albert Lafaele Application to this honourable tribunal. I have known Albert for 8 years and he is the Father [sic] of my 6 year old daughter [Child BL]… we are going to find it very difficult to continue life without Albert as I have known him to be most generous, caring & loving father & partner’ [My emphasis].[101]
[100] A2, p 204.
[101] A2, p 204.
The Applicant’s adult biological son – Chanel Arama. Mr Arama is the 37-year-old biological child of the Applicant. His written statement appears in the material. [102] He says ‘My father is heavily involved with me, my partner Tameeka (she identifies as Aboriginal) & children’s lives’. [103] Mr Arama also provided oral evidence to the hearing before me. During that evidence, Mr Arama confirmed that he ‘didn’t know anything about’ [104] the Applicant’s past difficulties with illicit drugs and was nevertheless content to have the Applicant around his children even if he returned to abusing illicit drugs because Mr Arama said ‘No, I don’t think he’d be using that [i.e. drugs] around my kids’. [105]
[102] A2, pp 195 -196.
[103] Ibid, p 195.
[104] Transcript, p 137, line 38.
[105] Ibid, lines 46 - 47.
Mr Arama described (in his oral evidence) the nature and extent to which the Applicant plays a role in both his and his partner’s life by assisting him with care and management of their children who, of course, are also the Applicant’s grandchildren:
“MR ARAMA---Well, my mother’s passed away. He’s the last of my parents, and, yes, he helps look after my kids, or come watch footy games, plus he looks after my - he’ll come and watch my sister’s kids, come and watch their games. If I need him to pick up the kids after school he’ll make his way and go pick up my kids after school.
SENIOR MEMBER: Okay, so you would describe him as a present and available parent and grandparent, and he’s generally available when you need him, if you need him. You’d agree with that?
MR ARAMA:---Yes.
SENIOR MEMBER: And he’s also a present and available parent in the context of participating in the family life of your children, that is, he watches their football games and probably goes to things like their school concerts or something like that. You’d agree with that?
MR ARAMA: ---Yes, exactly, yes”[106]
[106] Ibid, p 138, lines 15 – 28.
The Applicant’s adult stepdaughter – Moneniq Angell. Ms Angell’s is the 35-year-old stepdaughter of the Applicant. Her written statement appears in the material. [107] She says that she has always considered the Applicant to be her father since she was 12-years-old. She notes that her biological mother (Ms Maria Arama) passed away in 2013 and she implores the Tribunal to restore the Applicant’s visa status because ‘… taking his visa away will most definitely have a huge impact on our lives… He is our only parent left and I we [sic] are not strong enough to lose our father too…’.[108]
[107] A2, pp 198 – 199.
[108] Ibid, p 198.
Ms Angell also provided oral evidence to the hearing before me. During this oral evidence, she said the Applicant would come to reside with her in the event of his release to the community.[109] This is, of course, what has transpired. She added the following details around how she could assist the Applicant in terms of facilitating his return and re-settlement into to the community:
“MS ANGELL: ---First of all, he’ll be residing here with me and my children. I have my own car. I am a single mother, but my kids are all in school. That gives me, you know, when they go to school, that gives me time with pop. I have worked in community services, I’ve done my diploma, so I’m available (audio malfunction) community. I’m giving confirmation to abide by anything that, you know, the courts have set up, or if it’s - you know, if he has to go to counselling, courses, you know, meetings or AA, things, you know, things like that that he might need to reengage with, out here to keep him on that good path. And, you know, I can be that support person to take him where he needs to go to, guide him where he needs to go to.”[110]
[109] It should be remembered that Ms Angell gave her evidence at a time before the Applicant’s Pearson release from Immigration Detention.
[110] Transcript, p 148, lines 28 – 37.
She also described the likely role to be played by the Applicant in the event he were to reside with her upon a return to the community:
“MR BERG: If Albert is given another chance and comes to live with you, what do you think he’ll do in the house with you, with your children and with yourself and your siblings?
MS ANGELL: ---Well, for starters I think that we would make up for the time that, you know, we have lost from him, so it’ll just be, you know, family - family, you know, for a bit, for at least a month, you know. It’ll just be settling in and enjoying him being back home and having him back home. You know, four years is a long time. I can’t possibly say what we’re going to do, but I can tell you that we’re going to be over the moon if that is the decision that the courts decide to make. But, you know, if it’s during school, I know the kids are going to be over the moon, you know, ‘There’s pop.’ You know, he’s good, you know, for taking his grandchildren to school. You know, he’s got another two, and when he left, his grandchildren were the same age as my two now, they are now eight and seven. So, you know, they’re going to be over the moon. I can’t really say what we’re going to do, but it will only be positive things.
MR BERG: What I’d really like to hear about is what you expect Albert to do for the children?---For the children.
MR ANGELL: For the children?---What do I expect, to come home, be pop. I don’t expect much from him, you know, just to be around him, you know. He’s growing old, you know, I don’t expect him to go out and work, I don’t expect that. You know, he’s in his older years now, he should be home enjoying his grandchildren. There’s not much I’ll expect from him when he comes home, just to be home and loved, you know, be home and feel loved, be loved, enjoy his life, enjoy the rest of his years he has, you know. Tomorrow’s never promised.”[111]
[111] Ibid, p 149, lines 8 - 34.

The second of these short hand-written statements is from another of Moneniq Angell’s children, Child JA, who is aged 17 years. Child JA says: ‘I miss having my pop around. Its been along [sic] time since we seen him, miss having him at my footy games cheering on the sideline with his coffee. Its been too long, he should be home. I love you pop’.[137] None of these minor children were called to give evidence and nor, to my mind, should the Applicant feel compelled to call minor-aged witnesses to lend credence to what they have written on his behalf. It can be safely found that these three statements form a reliable sample of how the Applicant’s 17 minor grandchildren (including his minor biological Child BL) feel about him and the extent to which they know and love him as his grandfather.
[137] Ibid, 203. Note: this statement was written in May 2022, some seven months before the Applicant’s Pearson release in December 2022.
I have earlier recounted the evidence of the Applicant’s biological son (Chanel) and stepdaughter (Moneniq) about the extent to which the Applicant has played a very much ‘hands-on’ role as an available and supportive grandparent since his return to the community in December 2022. This is especially the case with Moneniq’s minor children because the Applicant has resided with her and her family on a continuous basis since his Pearson return to the community in December 2022. There is no requirement to recount the evidence of both Chanel and Moneniq about the nature and extent of the role which the Applicant has played, and is anticipated to play, in the future lives of these minor children.
The evidence of Chanel and Moneniq had its echo in the evidence of the Applicant’s stepson, the abovementioned Jonathan Taivairanga. It can be safely found that the evidence of Chanel, Moneniq and Jonathan is a reliable template for the remaining stepchildren of the Applicant on the specific issue of the Applicant’s prospects of playing a grandfatherly role in the future lives of these children.
Also, in the Applicant’s Tender Bundle there is reference to a couple of letters from Ms Amelia Woolcott who is the caseworker working at Uniting Burnside Foster Care in relation to Child BL. In the first of those letters dated 13 December 2022, Ms Woolcott notes that when Child BL first came into care, she had regular visits with the Applicant. She notes that the Applicant ‘consistently attended visits and was a constant person in her life…’[138] until his arrest and placement into prison and then immigration detention. It is important to note Ms Woolcott’s additional comments about the impact any removal of the Applicant would have on his capacity to reconnect with Child B as well as the impact on her if her father is geographically removed from her life.
“This year, Mr Lafaele has re-engaged with [Child BL] and they have both been writing each other letters. [Child BL] is always excited to receive a letter from Mr Lafaele.
It will have a devasting impact on [Child BL] if her father's residency is revoked and he is deported to New Zealand. In the long term this would impact his ability to maintain a relationship with his daughter and the possibility of his daughter seeing him would be minimal due to costs associated with travel out of Australia.
I feel the bond between Mr Lafaele and his daughter will be damaged if he was to be deported and that it outweighs the risks associated with him staying in Australia.
In addition to this, [Child BL] has had different placements, and her current placement is not long term or stable. As a result, [Child BL] is unsettled as she does not have a sense of permanency. Family connection with Mr Lafaele is vital for increasing [Child BL]’s sense of belonging and cultural safety in this time of the uncertainty regarding her placement.”[139]
[My emphasis]
[138] A2, p 212.
[139] Ibid.
The second of Ms Woolcott’s letters is dated 8 June 2023. This date is important because it post-dates the Applicant’s Pearson return to the community in December 2022. Given the currency and significant relevance of this letter to the best interests of Child BL, it is worth quoting this second letter in full.
“8 ^th of June, 2023
Re: Albert Lafaele
To whom it may concern,
I am writing as the caseworker of [Child BL], born [date of birth redacted]. [Child BL] has been in the care of the Minister since February 2017. When [Child BL] first came into care, she had regular visits with her Dad, Albert Lafaele. He consistently attended visits and was a constant person in her life, until he was arrested and deported. In 2022, Mr Lafaele re-engaged with [Child BL] and they had been writing each other letters. [Child BL] was always excited to receive a letter from Mr Lafaele.
Since Mr Lafaele has returned to Sydney, he has been eager to re-commence visits with [Child BL]. He attended her case plan meeting on the 23^th of February 2023 and has engaged positively with Uniting staff and [Child BL]'s carer. Mr Lafaele has patiently followed the organisations processes before having visits with [Child BL].
Mr Lafaele attended a meeting with [Child BL]'s caseworker to sign a family time agreement, around appropriate behaviour during visits with [Child BL]. There have never been any concerns around Mr Lafaele's conduct during visits and he has followed this agreement wonderfully. During this meeting, Mr Lafaele also shared lots of details regarding his family, who is in it and whether they live in Sydney. This is a massive support to [Child BL] as it allows her to be connected to more of her family and culture which is vital for increasing [Child BL]'s sense of belonging and cultural safety.
Mr Lafaele has a family time schedule and attends monthly visits with [Child BL]. Mr Lafaele had his first visit with [Child BL] on the 31^st of March, 2023. This was very positive for both [Child BL] and Albert. He was patient and understanding with her and [Child BL] was very excited to see him. Since then, he has had visits on the 16^th of April, 2023 and the 21^st of March. The next scheduled visit is on the 13^th of July 2023, which I have attached for your reference.
Amelia Woolcott
[Signature]
Casewoker
Uniting Permanency Support Program
North Paramatta”[140]
[My emphasis]
[140] A2, p 215.
Application of factors at 8.4(4) of the Direction to Child BL
Sub-paragraph (a): The nature and duration of the Applicant’s relationship with Child BL has undoubtedly been impacted by his enforced absence from her life during his time in prison and then immigration detention. His time with Child BL has not been parental because she has been in foster care since February 2017. Even though that relationship has not necessarily been parental, it cannot be safely found (at all) that the Applicant does not have an existing relationship with Child BL.
Here, the evidence of Ms Woolcott is critical. She makes it clear that both the Applicant and Child BL have both seized the opportunity to reconnect in the time since the Applicant’s Pearson release in December 2022. Since his release, the Applicant has visited Child BL on 31 March, 16 April, 21 May[141] and 18 July 2023. This level of engagement surely serves to negative any impact of the long periods of the Applicant’s absence from the life of Child BL. One does not need to read Ms Woolcott’s comment’s too closely to understand and appreciate the extremely positive impact experienced by Child BL as a result of the Applicant’s return to her life as a physical presence.
[141] Note: in her letter of 8 June 2023 and, particularly in the last paragraph, Ms Woolcott refers to monthly visits by the Applicant to Child BL. The monthly sequence began at the end of March and has continued to July of this year. Adopting those monthly intervals, it seems obvious that the reference to ‘21^st of March’ should in fact be a reference to May.
Heavy weight should be applied to this sub-paragraph (a) in support of a finding that the best interests of Child BL are served by this Applicant having his Visa status restored to him such that he can remain in the community and resume and develop a face-to-face relationship with her.
Sub-paragraph (b): there is surely little or nothing to cavil with the proposition that the Applicant is likely to play a positive parental role in the future. Granted, Child BL is presently in foster care but on the other hand, Ms Woolcott seems to be of the view that the Applicant’s reconnection with Child BL is proceeding very well. While it was conceded on behalf of the Applicant at the hearing that there are no current court orders relating to the Applicant’s right to parental access and care to and of Child BL,[142] there is nothing to suggest it would not be open to him to approach the Department of Community Services to bring Child BL into his exclusive care at some future point. I accept that the Applicant’s current circumstances surrounding the uncertainty of his Visa status to remain here have been a precluding factor against him making such an approach to that Department.
[142] Transcript p 236, lines 17 – 41.
Heavy weight should be applied to this sub-paragraph (b) in support of a finding that the best interests of Child BL are served by this Applicant having his Visa status restored to him such that he can remain in the community and resume and develop a face-to-face relationship with her.
Sub-paragraph(c): there is no evidence before the Tribunal that the Applicant’s prior conduct has adversely impacted Child BL. Likewise, we do not know the extent of any future negative impact upon her were he to re-offend. The sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph(d): again, one does not need to read Ms Woolcott’s comments too closely to understand the very likely effect that the Applicant’s physical removal would have on Child BL. While Ms Woolcott might not be a merits-based decision-maker with responsibility for determining a case like this one, it would be perilous to the interests of Child BL to ignore Ms Woolcott’s words to this effect: ‘I feel the bond between Mr Lafaele and his daughter will be damaged if he was to be deported and that it outweighs the risks associated with him staying in Australia’. And further, time spent by the Applicant with Child BL ‘… is a massive support to [Child BL] as it allows her to be connected with more of her family and culture which is vital for increasing [Child BL’s] sense of belonging and cultural safety.
It is trite to suggest that the optimism and positivity appearing in Ms Woolcott’s letters would be perpetuated in a scenario where the Applicant was removed and compelled to connect with her via telephonic and/or electronic and/or paper-based communication methodologies. It is clear that the positive impact Ms Woolcott has observed in Child BL since the Applicant’s Pearson’s release in December 2022 derives from him being a physical presence in her life.
Heavy weight should be applied to this sub-paragraph (d) in support of a finding that the best interests of Child BL are served by this Applicant having his Visa status restored to him such that he can remain in the community and resume and develop a face-to-face relationship with her.
Sub-paragraph (e): the obvious finding here is that Child BL’s foster carers comprise other persons who already fulfill a parental role in relation to her. But this reality should not militate against the Applicant assuming a growing parental role in her life. Nor should this reality detract from any weight allocable in favour of this Applicant for the purposes of this Primary Consideration 4. Foster carers may primarily parent Child BL now but it seems clear from the comments of Ms Woolcott that it cannot be taken for granted that this will forever be the case. This sub-paragraph (e) should be put to one side and rendered neutral for present purposes.
Sub-paragraph (f): we know the views of Child BL because a first hand witness in the form of Ms Woolcott tells us those views. I again invite the reader to look at her respective letters of 13 December 2022 and 8 June 2023 to readily understand the extent to which she is positively impacted and influences by spending one-on-one time with her father. Those views – as they are independently reported by Ms Woolcott – strongly militate in favour of the allocation of heavy weight to this sub-paragraph (f) in support of a finding that the best interests of Child BL are served by this Applicant having his Visa status restored to him such that he can remain into the community and resume and develop a face-to-face relationship with her.
Sub-paragraph (g): there is no evidence before the Tribunal that Child BL has been or is at risk of being exposed or subjected to family violence perpetrated by the Applicant nor that she has suffered any of the abuse or neglect contemplated by this sub-paragraph (g) which should be put to one side and rendered neutral for present purposes.
Sub-paragraph (h): while there is no independent clinical or other evidence that Child BL has suffered or experienced any of the trauma contemplated by this sub-paragraph (h) which should be put to one side and rendered neutral for present purposes.
Findings about Child BL
I have sought to apply each of the relevant sub-paragraphs at paragraph 8.4(4) of the Direction to the evidence before me in relation to Child BL. After doing so, I have reached a state of satisfaction that the best interests of Child BL weigh heavily in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Application of factors at 8.4(4) of the Direction to the 17 minor grandchildren
As will be seen from the abovementioned family tree, the relevant minor grandchildren number some 17 in total. It would be logistically absurd to apply the factors at paragraph 8.4(4) of the Direction to each and every one of those 17 minor grandchildren. I will instead adopt the evidence of Chanel, Moneniq and Jonathan when they have spoken about the extent of the role which the Applicant has played, intends to play, and is expected to play in the future lives of the relevant minor grandchildren. This is how I will apply the factors at 8.4(4) to the interests of those minor children.
Sub-paragraph (a): there is a palpable nature and durability to the extent of the Applicant’s relationship with his minor grandchildren. Of course, the relationship has been non-parental because the children already have parents. Also, there have been long periods of absence by him from their lives. But this is not to suggest that the grandchildren do not know the Applicant and would not otherwise welcome him as a physical presence back into their lives. Moderate weight should be applied to this sub-paragraph (a) in support of a finding that the best interests of the 17 minor grandchildren are served by this Applicant having his Visa status restored to him such that he can remain in the community and resume a and develop a face-to-face relationship with her.
Sub-paragraph(b): one need look no further than the evidence of Chanel, Moneniq and Jonathan to understand and appreciate the strong likelihood that the Applicant will play a positive parental role (as a grandparent) in the future lives of the 17 minor grandchildren until they obtain the age of 18 years. Looking at their respective ages, there is plenty of cumulative parenting time for the Applicant to assume such a role. He has certainly done so since his Pearson release in December 2022. Moderate weight should be applied to this sub-paragraph (b) in support of a finding that the best interests of Child BL are served by this Applicant having his Visa status restored to him such that he can remain in the community and resume and develop a face-to-face relationship with them.
Sub-paragraph (c): there is no evidence before the Tribunal that the Applicant’s prior conduct has adversely impacted any of the 17 minor grandchildren. Likewise, we do not know the extent of any future negative impact upon them were he to re-offend. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Sub-paragraph (d): one need look no further than the evidence of Chanel, Moneniq and Jonathan together with what was written by the children, SA, HA and JA – as summarised at [146] – [147] of these Reasons – to understand how these children would be impacted by a physical separation from the Applicant. While we do not have the evidence of an independent person such as Ms Woolcott to tell us about her observed and predicted impact of physical separation, the evidence of Chanel, Moneniq and Jonathan as well as form the children SA, HA and JA suffices to convince me that they would be adversely impacted.
Perhaps to a greater extent than was the case with Child BL, the Applicant will be able to maintain contact with these children via telephonic, electronic, and paper-based methodologies. However, there is no denying that his primary mode of contract with these children since his Pearson release has occurred on an in-person basis. Moderate weight should be applied to this sub-paragraph (d) in support of a finding that the best interests of the 17 minor grandchildren are served by this Applicant having his Visa status restored to him such that he can remain in the community and resume and develop a face-to-face relationship with them.
Sub-paragraph (e): there can be no cavilling with the proposition that other people already fulfill a parental role in relation to these 17 minor grandchildren. But this is not to suggest that the Applicant will not maintain his grandfatherly role if allowed to remain in the community on a permanent basis. He has certainly re-assumed such a role since his Pearson release in December 2022. Out of an abundance of caution, I will put this sub-paragraph (e) to one side and render in neutral for present purposes.
Sub-paragraph (f): in terms of the known views of the 17 minor grandchildren, we have the evidence of Chanel, Moneniq and Jonathan. We also have the evidence of the children SA, HA and JA. It is plain that these grandchildren want the Applicant as a physical presence in their lives and would prefer that scenario, to one of communicating with him remotely from New Zealand. I accept this is not arm’s-length evidence of the type Ms Woolcott has provided in relation to Child BL. Instead of heavy weight, I will allocate moderate weight to this sub-paragraph (f) in support of a finding that the best interests of the 17 minor grandchildren are served by this Applicant having his Visa status restored to him.
Sub–paragraph (g) and (h): for the same reasons I have given earlier in relation to Child BL, both of these sub-paragraphs can be put to one side and rendered neutral for present purposes.
Findings about the 17 minor grandchildren
I have sought to apply each of the relevant sub-paragraphs at paragraph 8.4(4) of the Direction to the evidence before me as it relates to these relevant 17 minor grandchildren. I have concluded that their interests militate in favour of this Tribunal allocating a moderate level of weight to revoking the mandatory cancellation of the Applicant’s Visa.
Conclusion: Primary Consideration 4
The cumulative best interests of Child BL and the 17 minor grandchildren, when analysed through the lens of the relevant sub-paragraphs of 8.4(4) of the Direction, lead me to a finding that this Primary Consideration 4 is of heavy weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[143] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[144]
[143] Paragraph 8.5(3) of the Direction.
[144] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The 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.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[145]
(a)acts of family violence; or
(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; or
(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; or
(f)worker exploitation.
[145] Paragraph 8.5(2) of the Direction.
I have carefully looked at the nature and extent of the Applicant’s offending, both here and in New Zealand, and am hard-pressed to form the view that any of it falls within the auspices of the abovementioned paragraphs (a)-(f) of paragraph 8.5(2) of the Direction. But that should not be the end of the inquiry. I am of the view that the Applicant’s very serious drug offending that came before Justice Craigie SC for sentencing in June 2020 is of such a magnitude of seriousness that regardless of whether it falls into any of the componentry of paragraph 8.5(2) of the Direction, the Australian community would expect that the Australian government can and should cancel this Applicant’s Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[146]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[147]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[148]
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[149] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[150]
[146] Paragraph 5.2(4) of the Direction.
[147] Paragraph 5.2(5) of the Direction.
[148] Paragraph 5.2(5) of the Direction.
[149] Paragraph 5.2(6) of the Direction.
[150] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [182], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa since December 2004 until it was cancelled on 7 July 2020.[151] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[152] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[153] Therefore the application of this sub-paragraph (a) is not applicable to the Applicant.
[151] G1, p 13.
[152] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[153] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [182], the Applicant has resided in Australia from December 2004 when he was 40 years old. He is currently aged 58 years. He has a demonstrated work history in Australia. He has fathered at least one biological child in Australia who is presently aged 7 years. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been, ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Act
In relation to sub-paragraph (c) of the abovementioned paragraph [182], I repeat that the Applicant resided in Australia from the age of 40. He is currently 58 years of age. He has resided in Australia since December 2004. He has spent about a third of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal, or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [182], I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. This finding is not augmented by any possibility that he has spent his formative years in this country because he arrived her as a 40 year old.
In relation to sub-paragraph (e) of the abovementioned paragraph [182], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his ‘very serious’ drug offending for which he was sentenced in June 2020 and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s ‘very serious’ offending for which he was sentenced in June 2020 and the resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [182], I have found that while the Applicant’s offending does not readily fall within the auspices 8.5(2) of the Direction, the Applicant’s very serious drug offending that came before Justice Craigie SC for sentencing in June 2020 is of such a magnitude of seriousness that regardless of whether it falls into any of the componentry of paragraph 8.5(2) of the Direction, the Australian community would expect that the Australian Government can and should cancel this Applicant’s Visa.
Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. This is the case even in circumstances where, as I have found, he represents a low – moderate recidivist risk of re-offending and causing physical and other harm to the Australian community. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour even where he represents a low – moderate recidivist risk.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a certain, but not determinative level of weight in favour of this Tribunal revoking the mandatory cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
The parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. I agree.[154]
[154] Transcript, p 204, lines 29 – 31; see also R1, p 20, [82].
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 58 years of age and has not declared any physical or other health conditions in his PCF.[155] In his statement appearing in the Applicant’s Tender Bundle, the Applicant recounts a series of medical maladies essentially comprising polyps in his intestine (in 2019); a painful growth inside his mouth (in 2021); and abdominal pain in his stomach (in 2021). He is on a waiting list for an endoscopy and colonoscopy to treat the remaining two polyps inside his intestine.[156] There is little to cavil with the proposition that he would be able to access relevant treatment for these health issues in New Zealand.
[155] G1, p 162.
[156] A2, p 1, [4] – [7].
Paragraph 9.2(1)(b): there is nothing in the evidence about any about any substantial language or cultural barriers impeding the Applicant’s return and re-settlement in New Zealand. As previously noted by this Tribunal (differently constituted): ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…].’[157] He is 58 years of age and spent the first 40 years of his life in New Zealand. He is well-familiar with language and cultural norms of that country.
[157] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. To the extent he may require medical support for his stated medical maladies, he will be able to access such publicly available medical support to the same extent as other citizens of New Zealand. In terms of economic support in New Zealand, the Tribunal has evidence that the Applicant has worked in a range of fields in Australia including, for example, logistics/warehousing and pest control. All of the sorts of work he said he could do in Australia (during his evidence) he could readily do in New Zealand. Were he to become unemployed, he would be able to access the same level of government benefits as is generally available to other citizens of New Zealand. In terms of social support, the Applicant was adamant that ‘… I have nothing in New Zealand’.[158] This evidence was, to an extent, corroborated by both his adult child and step-child, namely, Chanel and Moneniq.
[158] Transcript, p 27, line 24.
Findings about impediments
I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on victims
The parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. I agree.[159]
[159] Ibid, p 207, lines 26 – 31; see also R1, p 21, [85].
Other Consideration (d): Impact Australian business interests
The parties are ad idem that this Other Consideration is not relevant to the instant determination and that it should carry neutral weight. I agree.[160]
[160] Ibid, p 208, lines 6 – 11; see also R1, p 21, [88].
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderate weight in setting aside the Decision Under Review;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the mandatory cancellation. As noted previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a certain, but not determinative level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: is of neutral weight;
·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of a heavy level of weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a certain, but not determinative level of weight in favour of affirming the Decision Under Review.
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 plus Other Consideration (b) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 22 June 2021 made by a delegate of the Respondent and substitutes it with a decision to not cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding 204 (two hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............[SGD].....................
Associate
Dated: 31 August 2023

Dates of hearing: 26 and 27 May 2022;
16 December 2022;
3 and 4 August 2023

Counsel for the Applicant: Mr Peter Berg
Selborne Chambers

Solicitors for the Applicant: Ms Marta Mamarot (Principal) &
Ms Wendy Milojkovic (Associate)
SouthWest Migration and Legal Services

Solicitors for the Respondent: Mr Cormac Burke (Senior Associate)
Sparke Helmore Lawyers
ANNEXURE A- EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Remittal Bundle (TB1-TB8, paged 1-631)

R

Various

11 May 2023

R1

Respondent’s Further Updated

Statement of Facts, Issues and

Contentions (paged 1-21)

R

27 July 2023

27 July 2023

R2

Further Tender Bundle (FTB1-FTB3, paged 1-126)

R

Various

27 July 2023

R3

Transcript of Previous Tribunal (paged 1-177)

R

Various

5 May 2023

R4

Letter dated 27 July 2023

R

27 July 2023

3 August 2023

A1

Applicant’s Statement of Facts, Issues and Contentions (paged 1-13)

A

30 June 2023

30 June 2023

A2

Tender Bundle (Version 4) (1-18, paged 1-215)

A

Various

21 July 2023

ANNEXURE B – FAMILY TREE

Dates of hearing:	26 and 27 May 2022; 16 December 2022; 3 and 4 August 2023
Counsel for the Applicant:	Mr Peter Berg Selborne Chambers
Solicitors for the Applicant:	Ms Marta Mamarot (Principal) & Ms Wendy Milojkovic (Associate) SouthWest Migration and Legal Services
Solicitors for the Respondent:	Mr Cormac Burke (Senior Associate) Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Remittal Bundle (TB1-TB8, paged 1-631)	R	Various	11 May 2023
R1	Respondent’s Further Updated Statement of Facts, Issues and Contentions (paged 1-21)	R	27 July 2023	27 July 2023
R2	Further Tender Bundle (FTB1-FTB3, paged 1-126)	R	Various	27 July 2023
R3	Transcript of Previous Tribunal (paged 1-177)	R	Various	5 May 2023
R4	Letter dated 27 July 2023	R	27 July 2023	3 August 2023
A1	Applicant’s Statement of Facts, Issues and Contentions (paged 1-13)	A	30 June 2023	30 June 2023
A2	Tender Bundle (Version 4) (1-18, paged 1-215)	A	Various	21 July 2023