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

LLGW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 76 (24 January 2022)
Division:GENERAL DIVISION
File Number: 2021/8093
Re:LLGW
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:24 January 2022
Place:Brisbane

The Tribunal sets aside the decision made by the delegate of the Respondent on 28 October 2021 and exercises the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.
.............................[SGD]...........................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Absorbed Person visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review set-aside – mandatory cancellation of the Applicant’s visa revoked
LEGISLATION
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member Rebecca Bellamy
24 January 2022
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 54 year old citizen of New Zealand. In April 1969 when he was 22 months old, he moved to Australia with his family.[1] The most recent visa granted to him was an Absorbed Person visa (“visa”).
[1] Exhibit G1, Section 501 G documents, G2 page 73.
On 27 July 2021, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 18 August 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 28 October 2021, the Respondent decided not to revoke the cancellation.[4]
[2]     Exhibit G1, Section 501 G documents, G2 pages 34 to 40.
[3]     Exhibit G1, Section 501 G documents, G11 pages 48 to 53 and page198.
[4]     Exhibit G1, Section 501 G documents, G2 page 11.
The Applicant subsequently lodged an application for review in this Tribunal on 1 November 2021.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit G1, Section 501 G documents, G1 pages 1 to 7.
The hearing of this application took place on 5, 6 and 18 January 2022. The Applicant gave evidence via videoconference. The Applicant’s partner, brother, sister, son and three other lay witnesses gave evidence by telephone. The Tribunal also heard evidence from Ms Delphine Bostock, forensic psychologist, via telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
I found the Applicant to be a credible witness. When giving evidence, his manner seemed natural and sincere. His evidence was candid, detailed and consistent without sounding rehearsed. Much if it was corroborated by other witnesses or documentary evidence. He did not deny or try to minimise or excuse his offending and drug abuse. The lay witnesses who gave evidence also came across as sincere. I did not detect any efforts to be evasive or to tailor their evidence. The Applicant’s partner in particular was frank and forthcoming about her struggles with mental health and substance abuse, and she gave concrete examples to support the claims she made about the Applicant’s impact in her life. Where I refer to evidence given by the Applicant or any lay witness called by the Applicant, it is implicit that I accept that evidence unless stated otherwise.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. If either of paragraphs (i) or (ii) are satisfied, I should revoke the original decision.[6]
[6] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 18 May 2015, the Applicant was sentenced to a term of imprisonment of 13 months and 15 days with a parole eligibility date of 2 October 2015. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[7] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[7] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.[8]
[8] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of Part 2 of the Direction.
Those principles may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. 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 best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note that paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
BACKGROUND AND OFFENDING
The Applicant was born in New Zealand. In April 1969, when he was 22 months old, he arrived in Australia with his mother who is an Australian citizen. His father, a New Zealand citizen, moved to Australia to join the family a few months later. Several years later, his parents had another son and a daughter. The Applicant has only returned to New Zealand on two occasions, when he was a child, to visit family.
The Applicant witnessed, and was sometimes the victim of, violence in his family home for many years. In Ms Bostock’s opinion, he suffers from Post-Traumatic Stress Disorder (“PTSD”) arising from that experience. He started using drugs, being marijuana and speed, in his early teens. He started using heroin around the age of 30.
In 1985 and 1986, the Applicant was convicted of being drunk in a public place, wilfully damaging property, assault occasioning actual bodily harm (x2), using indecent language in a public place and behaving in an offensive manner in a public place.
The assault occasioning bodily harm offences occurred when the Applicant was 18 years old and they appear to have arisen from one offending episode. According to the Applicant he was under the belief that a son should be like his father. He explained:
“The fear I have of my father started in childhood and continued up until my late teens. As I grew older, I had the belief that a son should grow up in his father’s footsteps. Thinking he would be proud and show me more respect and be more loving towards me, I began to go to parties and at one party, a situation occurred where I ended up acting just like my father. I did just what I had seen my father do in the past. A man had a gun aimed at my friends, so I took the gun and proceeded to fight the man and his son. They took me to court and when I saw the photos, I felt so bad that I was responsible. I realised then that I am more like my mother and my father. I have my mother’s gentle nature. I have never been violent again.”[9]
[9] Exhibit A1, Applicant’s Statement of Facts, Issues and Contention, Annexure A.
Between 1991 and June 2021, the Applicant appeared before Australian courts on over 20 separate occasions and was convicted of some 50 offences. None of these were violent offences. The vast majority arose from his possession or illicit drugs or drug related paraphernalia, breaches of bail conditions and failures to appear in court. Four of the drug paraphernalia offences involved failing to properly dispose of a syringe. The other offending includes minor traffic infringements, driving without a license (x7), producing illicit drugs (x4) and possessing/receiving tainted property (x3).[10]
[10] Exhibit G1 Section 501 G documents, G2, pages 23 to 27; page 32; Exhibit R2, Respondent’s Bundle of Evidence pages 104 to 106.
There are two significant breaks in the Applicant’s criminal history where there were no offences recorded from 1992 to 1995 and from 2001 to 2010. The Applicant recently told Ms Bostock that during those periods he was employed, and his mental health was stable.
In relation to driving without a license, the Applicant explained that he had struggled without a driver’s licence for many years. Not having a licence severely impacted his ability to find and retain suitable employment as he lived in a rural community where there were limited employment opportunities and public transport was non-existent.
The Applicant denied ever having produced drugs with the intention of selling them or giving them to family or friends. He said he was only ever trying to sustain his own drug problem.[11]
[11] Transcript, page 10, lines 19 to 28.
For many years the Applicant’s offending was met with fines and community-based orders. In February 2012, the Applicant was sentenced to imprisonment for three months with immediate parole for producing dangerous drugs. In February 2015, he was sentenced for multiple offences to a total effective sentence of six months imprisonment with immediate parole.
In April 2015, the Applicant was sentenced to three months imprisonment for breaching bail and given immediate parole. In May 2015, he was sentenced to imprisonment for 13 months and 15 days for producing dangerous drugs, being amphetamine. The offences carried a maximum penalty of 20 years imprisonment. In passing sentence, the learned Judge said:
“You come before this court with a disturbing history of like offending, particularly in relation to drugs, with two similar convictions in respect of production.
You have been afforded every possible form of order that can be given short of actual imprisonment. Although I note you are now in prison for breaches that occurred following your apprehension in respect of this offending…I’m mindful of the matters that are alleged against you. In particular, that it appears that following the execution of a warrant at the residence that you were occupying, police found chemicals and some items which were available for use in the manufacture and production of methamphetamine, and that the equipment that was seized was typically associated with the production of that drug.
…that police inquiry has not revealed the quality or quantity of the drug that was being produced by you, and that factor stands in your favour.
However, that aside, I think having regard to your criminal history and the submissions made on your behalf, particularly concerning your drug use history that it would not be difficult to accept the submission that the drug manufacture in this case was not for commercial purposes but more likely than not to support your own individual drug habit. It is a matter you will need to address. I’m conscious that you have had a somewhat disadvantaged upbringing. I’m also conscious that your employment history is not great. In particular, it’s disturbing to see that you have been unemployed since late 2011 notwithstanding the fact that you have a technical qualification. You really do need to consider applying your skills more constructively than to activities such as this.
…
You need to be conscious that upon your release, should you be charged with any subsequent offences it’s likely that the parole authorities will take action to revoke your parole. You are no doubt aware of that from having spoken to people within the prison system. So it is hoped that the period of your parole release upon release is, again, a period when you will work hard at rehabilitating yourself from this dreadful scourge.”[12]
(Underlining added)
[12] Exhibit G2, Section 501 G documents, pages 29 and 30.
On two further occasions, the Applicant was given sentences of imprisonment that he was not required to serve (one sentence was suspended and the other came with immediate parole). These were for drug possession in 2018.
In August 2020, the Applicant was caught by the police driving unlicensed and in possession of drugs and drug-related paraphernalia. According to the Applicant, he had reduced his drug use but leading up to this offending, four of his close friends had passed away: one from an overdose, one from a medical condition and two from suicide. This affected him greatly. Then COVID happened and the restrictions and isolation made him feel like his world had been turned upside down. He decided to obtain some drugs and he drove, without a license, to get them.
In June 2021, the Applicant was sentenced to a total of four months imprisonment for:
·     possess property suspected of having being used in connection with the commission of a drug offence;
·     fail to take reasonable care and precautions in respect of syringe or needle;
·     possessing dangerous drugs (cannabis); and
·     driving without a license.[13]
[13]    Exhibit G1, Section 502 G documents, G2, pages 24 and 32.
The learned Magistrate’s remarks on sentence included:
“You’ve been a drug addict all your life, essentially. All your adult life at least, starting as early as 13 or 14 years old, and I’ve heard…that you have curtailed at least your opium – opiate addiction, but – and you have a greatly reduced drug use. And I’m not minimising that achievement, because that is a difficult thing, and it is the case that these are very small quantities. For you, it does represent a tapering off of your behaviour, but you – the court requires more than a tapering off. You’re required to desist and stop using drugs, and you have had terms of actual imprisonment previously, and served time in custody, following the 2015 offence in the District Court.
You’ve been before the court then on more than one occasion, when obviously the court is wanting to tailor sentences that will not have you actually going to prison, but to stop you. To have it hanging over your head and realise the seriousness of your offending in getting suspended sentences and then released to parole. But today, with the repetition of the offences, in my view you have brought yourself where terms of imprisonment with actual time are the only option to the court, given the need for your personal deterrence as well as general deterrence in the community, and denouncement of the persistence of your drug use.
…
Can you please get your licence when you are back in the community? Don’t do this offence again.”[14]
(Underlining added)
[14] Exhibit G2, Section 502 G documents, page 32.

There is a police file note dated 30 December 2013 recording an allegation made by the Applicant’s former partner that implied that he had done something to her. The file note indicates that when police arrived, she had said that “This happens every time” but refused to confirm what she meant. She then asked the police to help her with the Applicant because he comes over with his friends all the time.[15]The Applicant’s partner at that time was “Ms S”.
[15] Exhibit R3, Respondent’s Bundle of Summonsed Materials pages 119 and 120.
Ms S applied for a Protection Order on 14 April 2016.[16] In the application, she alleged that she had endured much aggression and mental violence, that she had many injuries and that the Applicant had strangled her a few times and taken out his frustration on her.
[16] Exhibit R3, Respondent’s Bundle of Summonsed Materials pages 122 to 129.
The Applicant is not aware of the incident that led Ms S to make the application. He only became aware of it when he received a Notice to Appear, which surprised him. He said he and Ms S would argue but the arguments never became violent or aggressive although they did get heated at times. When that happened, he would remove himself from the situation so things would calm down. He said at the time she applied for the Protection Order they were on-again, off-again and he asked about it when he saw her. She said she was upset with him but had no intention of going through with it. He attended court but Ms S did not. The matter did not go any further and was dismissed on 28 April 2016.[17]
[17] Transcript, page 10, line 42 page 11, line 20.
According to the Applicant, both he and Ms S used drugs during their relationship. She used methamphetamine and it made her “lose the plot”.[18] He said she once threw a knife at him and he had to pull it out of his leg. On another occasion she broke his arm with a baseball bat. He thought that happened after he got out of jail in 2015.[19] On yet another occasion she broke his thumb with a baseball bat. That time, he had put his arm up to defend himself and he had not initially realised his thumb was broken but when he tried to play guitar later he realised he could not move his joint. When giving this evidence, the Applicant held up his thumb and demonstrated that he could not bend it. He said he thought he was as much to blame for what happened as Ms S was because he had not removed himself from the situation.[20]
[18] Transcript, page 13, lines 9 to 20.
[19] Transcript, page 12, lines 10 to 13.
[20] Transcript, page 11, lines 22 to 35; page 12, lines 35 to 40.
The Applicant’s sister recalled Ms S having hit the Applicant with a baseball bat causing a fracture to his forearm. She did not think it was a violent relationship but a very unstable relationship.[21] A “Mr C”, who is a long-time friend of the Applicant, gave evidence of an occasion when he arrived at Ms S’s place to pick up the Applicant. The Applicant came running into the car. He lifted his pants revealing a stab wound.[22] Mr C described Ms S as a “very big, intimidating person”, very strong worded and he said “she does that intimidation straightaway”. He was not aware of any accusations made by Ms S against the Applicant.[23] The Applicant’s current partner, “Ms K”, has known the Applicant for around six years. She gave evidence that she noticed a large scar on the Applicant’s leg one day and asked him about it. He told her Ms S had stabbed him, and he told her about her breaking his arm and thumb.[24]
[21]    Transcript, page 105, lines 25 to 43.
[22]    Transcript, page 94, line 41 to page 95, line 5.
[23]    Transcript, page 95, lines 20 to 44.
[24]    Transcript, page 66 lines 8 to 16.
Significantly, Ms S herself provided a letter of support and a statutory declaration. She said she had known the Applicant for approximately 25 years and for some of that time they had shared a house together. They remain close friends. She said the Applicant is well liked in the local community (hereinafter referred to as “Town A”) and he could always be called upon to help people in a time of need whether it be emotionally, physically or for manual labour. She said she had never known him to be violent or aggressive towards anyone.[25]
[25] Exhibit G1, Section 501 G documents, G2, page 90.
The Respondent contended that the Applicant had told Ms Bostock that he had some memory problems from his drug use and his failure to recall the incident that led to Ms S applying for the Protection Order should be seen in that context. It was also contended that Ms S had not, in her written evidence, specifically addressed the allegations she had made and she had not been made available for cross examination. The Applicant said he had asked her to give evidence but she had forgotten that she made that allegation and she was “afraid that it might be taken against her as, like, she lied”.[26]
[26] Transcript, page 51, lines 1 to 11.
While I take the Respondent’s contentions into account, I consider that the weight of the evidence is inconsistent with the Applicant having been violent toward Ms S. Rather, it appears that he was a victim of domestic violence. I am not satisfied that he committed any acts of family violence.
In October 2015 the Applicant received a letter from the Department giving notice of its intention to consider the cancellation of his visa.[27] The Applicant recalls that when he was in prison in 2015, he received paperwork regarding his status in Australia. He and his mother completed the paperwork to the best of their abilities and did not receive a response. He said he had always thought he was an Australian citizen and did not understand the paperwork to mean that he was a non-citizen.
[27] Exhibit R2, Respondent’s Bundle of Evidence, RE5.
A Queensland Corrective Services file note dated 12 November 2015 recorded:
“Offender stated that he has not experienced any cravings or withdrawals. He stated that he attended the Heritage Village in [Town A] for Melbourne Cup day where some friends were smoking THC however he stated that he was not tempted by this. He stated that a significant deterrent for him is knowing that if he uses any substance and is tested and sent to custody that he may be deported.”[28]
[28] Exhibit R3, Respondent’s Bundle of Summonsed Materials, page 234.
This file note indicates that at least in November 2015, the Applicant understood that he could be deported if he was returned to custody. However, the Applicant said that because he did not receive any response from the Department, he and his mother thought the matter had been resolved and he still did not realise that he was on a visa. He said it was probably negligence from his side and he should have followed up.[29] I respectfully agree. I think there was a time when the Applicant believed he could be deported but that some confusion subsequently crept in and he did not make an effort to clarify his status.
[29] Transcript, page 53, lines 10 to 20.
The Applicant provided evidence detailing his battle with substances. He said, growing up he witnessed his father beat many people, men and women, to the point where they were hospitalised. His father had no tolerance for anybody who got in his way or bothered him. He heard his father hurting his mother and his father also injured him. The Applicant tried to stay away from his home, spending more and more time with friends, to escape the horrors there. This is how he was introduced to drugs, which helped him escape the thoughts of what was happening at home or what was going to happen at home. He said he does not see that as an excuse, and he feels regret and remorse for his appalling behaviour. He feels he has let everybody down.
When the Applicant was around 30 years old he became addicted to opiates. When his family found out they offered to put him into a rehabilitation facility, but he refused. He was not ready, and he knew he would disappoint them and waste their money. However, in 2005 he realised he had had enough of that drug controlling his life. He described it as a mental as well as a physical addiction, and making a mental shift was the start of beating the addiction. He sought medical help, entered into a Subutex program with a doctor, and after four days of taking that medication he stopped taking morphine. On the fifth day he returned to work. He remained on Subutex for a further 12 months. He never used morphine again. This is one of his proudest achievements.
The Applicant considers that the biggest mistake he ever made was not addressing his problem with other drugs like marijuana and amphetamines. He thought because they were not physically addictive, they were not really a problem, however he realises now he was mistaken. In the last few years, he tried to address his drug problems with mixed results. When he got out of gaol in 2015, he went to Lives Lived Well and attended some short Alcohol, Tobacco and other Drugs Service (“ATODS”) programs. However, he thought he did not make the effort he should have. He said the experience of detention is much more horrifying and stressful than prison.
The Applicant lived in the Town A area for around 25 years. He described it as a close-knit community. He used to help with events to raise money for the school or the [Town A] Hall committee. He then became a member of the committee. He would participate in working bees as well. The committee would raise money for whatever was needed in the community. He recalled fundraisers for a new roof for the [Town A] Hall and a new shed for the [Town A] Rural Fire Brigade of which he was also a member. He said that Town A, being a forest, quite often had fires and when they occurred the brigade would fight them. Some came close to the town which was frightening. He has been involved in the (nearby) Town B football club for around 20 years, playing football and helping with community events.[30]
[30] Transcript, page 19, lines 8 to 48; page 20, lines 1 to 9.
After being charged with the most recent offending, the Applicant developed an intimate relationship with Ms K and they started living together in October 2020. He has been drug-free during his imprisonment and detention, being some 19 months.
The Applicant’s licence is currently suspended because of debts he owes to the State Penalties Enforcement Registry (“SPER”). He believes that once he goes back onto a payment plan, he will be eligible to get his license back.[31] His brother said he might be able to help him pay this SPER bill off so he can get his licence again and start sorting out his life.[32]
[31] Transcript, page 31, lines 1 to 14.
[32] Transcript, page 100, lines 15 and 16.
EVIDENCE OF FRIENDS, FAMILY AND COMMUNITY MEMBERS
The Applicant’s friends, family and members of his community have rallied behind him in his efforts to remain in Australia. Many people provided letters, statutory declarations and oral evidence. All spoke about the Applicant in positive terms, and I will not detail what each person said in that regard. As each person’s evidence tends to relate to more than one of the Primary and Other Considerations, it is convenient to summarise the salient parts here.
The Applicant’s aunt has known him since he arrived in Australia. She recalled him playing junior football and always showing great respect for his two fellow teammates, the opposition and the officials. She said the Applicant was several years older than her children and he assisted them in learning to swim and was always ready to lend a hand caring for them and protecting them.[33]
[33] Exhibit A4, Letter from the Applicant’s Aunt.
“Ms N” provided a letter in which she said she was a recovered drug addict with seven years of sobriety, that she met the Applicant in 2008 when she was going through a rough time personally, and that he was the first person to show her any support or kindness in a hostile and dangerous environment. She said she had never seen the Applicant profit in any way from drugs and that everything she saw was strictly personal use. She said should he be successful in this application she will use her extensive network in the social services community to do whatever possible to help him succeed in his recovery.[34]
[34] Exhibit G1 Section 501 G documents, G2, page 81.
“Mr L” has known the Applicant since 1994 when they first started playing in a band together. They toured and recorded together for closely for 10 years until Mr L relocated to Victoria. In that time, he trusted the Applicant with his young family and the Applicant showed them love and respect on every occasion. He has never known the Applicant to ever have hurt anybody.[35]
[35] Exhibit G1 Section 501 G documents, G2, page 82.
“Mr G” has known the Applicant since the early 1990’s through his daughter “Ms V”. He described the Applicant as a supportive friend to his daughter, and an honest and sincere person.[36] Ms V has known the Applicant since 1993 when she was 17 years old. She described him as her best friend. She said the Applicant had been through thick and thin with her, supporting her through various life events. She mentioned his involvement in the community as a former president of the Coastal Blues Club Inc which is a not-for-profit music club in. She said he played in the house band which supported other acts and, when not on stage, he helped with door sales, cooking for the charity barbecue, setting up and packing up the stage and anything else required of him. She said he had spent a lot of years in the small community of Town B and was always actively involved in the [Town A] Hall Committee, doing maintenance and playing gigs with other musicians in fundraising events. She said he had pitched in at many people’s homes on working bees. To her knowledge he had never used substances other than for his own use.[37]
[36] Exhibit G1 Section 501 G documents, G2, page 83.
[37] Exhibit G1 Section 501 G documents, G2, pages 85 and 86; ExhibitA1, Applicant's Statement of Facts, Issues and Contentions, Annexure K.
“Mr W” has known the Applicant since 1993 when they worked together. He described him as having a calm and reassuring nature, and said he had never seen him in an argument, fight or act of aggression in any form. He has played sport with the Applicant and the Applicant has assisted in the arts community in fundraising and benefit nights, playing in bands for worthy causes. He said that “in his long time living with us he has integrally woven himself into the fabric of our community”.[38]
[38] Exhibit G1 Section 501 G documents, G2, page 84.
Mr B is a foundation member of Narcotics Anonymous in Central Queensland. He confirmed that the Applicant has been attending two meetings per week by phone since November 2021. He said the there are numerous members who would be willing to support the Applicant.[39]
[39] Exhibit A2, Applicant’s Reply, Annexure C.
“Mr D” has offered the Applicant a room in his home. He is aware of the Applicant’s past and current situation. He is willing to drive the Applicant to Narcotics Anonymous meetings and any other appointments he has.[40]
[40] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure B
“Ms H” attends the Narcotics Anonymous meetings that the Applicant has been attending. She used to be a drug user. She stopped using drugs around three years ago and she has been in the Narcotics Anonymous program for 12 months.[41] She will drive the Applicant to attend meetings upon his release.[42] She lives in the same unit block as Mr DM. Her children are grown and her only commitment is her job, so she has the time to drive the Applicant to counselling and other appointments too.[43]
[41]    Transcript, page 91, lines 1 to 8.
[42]    Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, A1, Annexure M.
[43]    Transcript, page 89, lines 40 to 45.
Ms H said the Applicant had supported her and her family through the hardest times of their lives: the death of her mother 12 years ago, her father a year later, then her uncle followed by a dear friend who died from cancer, and another friend who died from suicide. She had a marriage breakdown and went through the Family Court. The Applicant was there through all of it. He has a key to her unit and she trusts him completely.[44] Her daughter, said she has known the Applicant for 14 years as a close family friend. He is like an uncle to her who has been in her life and her mother’s life through much loss and heartache.[45]
[44] Exhibit G1 Section 501 G documents, G2, page 88.
[45] Exhibit G1 Section 501 G documents, G2, page 87.
“Ms P” has known the Applicant for 18 years through her partner and through the Town B football club where he played for a number of years. She said he was involved in the community through music, raising money for a Blues Club and the Town B football club and he occasionally worked in the clubhouse bar. He helped her through a horrible time in her life 18 months ago when she separated from her partner of 20 years, she had depression and PTSD, and was suicidal. She said without the Applicant taking her away fishing and his kind words of wisdom she would not be here today.[46]
[46] Exhibit G1 Section 501 G documents, G2, page 89.
The Applicant’s GP provided a letter stating he has known the Applicant as a patient since 2002. The Applicant had ongoing anxiety and episodes of depression for which he has been treated with counselling and medication. He described the Applicant as having lived a quiet life and said that to his knowledge the Applicant is a person of good character.[47]
[47] Exhibit G1, Section 501 G documents, G2, page 93
Mr C (the friend who saw the Applicant’s fresh stab wound) has been a close friend of the Applicant for over 15 years. He recalled an incident when his boat capsized in crocodile and shark infested waters in the middle of the night. Despite there being people with boats on shore, none of them responded to his cries for help. The Applicant swam into the water to help him, putting his own life at risk.[48]
[48] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions.
The Applicant’s mother said that the Applicant is not a violent person.[49] She said she and the Applicant have a special bond and he has always been there for her when she needed him. She is 77 years old and has a hearing disability which makes a simple phone call difficult. She and the Applicant’s father are pensioners, and it would cause severe financial strain to visit him if he were deported. She struggles on a daily basis to remain composed and not worry about the Applicant and the family.[50]
[49] Exhibit G1 Section 501 G documents, G2, page 73.
[50] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure G.
The Applicant’s brother said he grew up having a close relationship with the Applicant and as a child he could not wait for the Applicant to come home and visit. He said the Applicant has always been a positive influence in his life. He described sleepless nights and being in a constant state of stress because of the Applicant’s predicament. He worries for the Applicant, himself, his children and his mother and sister. He believes if the Applicant were removed from Australia things would be even worse.[51] He referred to the stress and pain that his mother has been going through and said he has never felt so helpless to see her like that and not be able to do anything. He believes that the Applicant would never want to put their mother through that again.[52] If the Applicant is released, his family would see him as they do not live far from Town B, and they visit there frequently taking the kids to the beach and because his parents live there.[53]
[51]    Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure H.
[52]    Transcript, page 100, line 45 to page 101, line 5.
[53]    Transcript, page 99, lines 24 to 27.

The Applicant’s brother’s wife said their two sons adore the Applicant and have many fond memories of him playing guitar for them, camping, fishing and having movie nights. She said she has witnessed first-hand the anguish and stress his family have endured throughout this ordeal.[54]
[54] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions Annexure J.
The Applicant’s younger sister, “Ms R”, said their family have no connection to New Zealand, and that the Applicant’s removal would be detrimental to the health of her two elderly parents and devastating to the Applicant’s son and grandchildren. She has spoken to the Applicant many times during this period of incarceration about his rehabilitation and intention to enter into a drug and alcohol diversionary program.[55] She has made several enquiries with different service providers that will help reintegrate him into society. She said he acknowledges he must attend the drug rehabilitation service and that she has made tentative bookings for him to participate in a drug diversionary program through ATODS.[56]
[55] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions Annexure I.
[56] G2, pages 79 and 80.
Ms R has three children who are 22 years old, 17 years old (two months from his 18^th birthday) and eight years old.[57] The Applicant lived with Ms R’s family for several short periods and for a period between 2008 and 2011. The Applicant lived downstairs, and the rest of the family lived upstairs. He was a significant help to her during that time which included a period when she was a single parent. She was aware of the Applicant’s drug use but not of the extent of it.[58] She did not approve of his use of drugs and on one occasion told him to leave her home because of it.[59]
[57]    Transcript, page 103, lines 15 to 18.
[58]    Transcript, page 103, line 32 page 104, line 5.
[59]    Transcript, page 104, lines 6 to 12.
Ms R is not aware of the Applicant’s drug use ever causing a negative impact on anyone other than himself. Ms R is not in a financial position to visit the Applicant in New Zealand.[60] She is distraught at the prospect of the Applicant being deported and she said her mother is slowly dying of a broken heart because none of the family can afford to travel to New Zealand.[61]
[60] Transcript, page 105, lines for 219.
[61] Transcript, page 106, lines 28 to 43.
The Applicant’s son first became aware that the Applicant was his biological father when he was 14 years old. He said his paternal family welcomed him as one of their own as soon as they met him. Until recently he was unaware of the extent of the Applicant’s involvement with drugs, having never seen him use drugs and only having had the occasional social beer together. He said over the years numerous people have commented to him about how nice his father is and what a loving nature he has, which has driven him to be a decent and kind person, partner and father. He said his partner and his two children have a great relationship with the Applicant. He speaks almost daily to the Applicant in detention. Given his family’s low income he would not be able to visit the Applicant in New Zealand. While he believes that the Applicant will be able to stay sober, he has made it known to him that if his drug use continues there would be limited contact with his grandchildren. He said the whole family is ready to give the Applicant whatever support he needs to stay clean.[62] He lives a 20 to 30 minute drive from Town B.[63]
[62] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure F
[63] Transcript, page 79, lines 20 to 25.
The mother of the Applicant’s son provided a statutory declaration in which she explained the circumstances surrounding her decision not to tell the Applicant about their son, and her subsequent decision to tell him. Her explanation does not reflect poorly on the Applicant. She described the Applicant’s and his family’s involvement in her son’s life as being a “godsend” and spoke positively about the Applicant.[64]
[64] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions.
Ms K was a friend of the Applicant for around five years before she started a relationship with him in September 2020. They moved in together the following month. Ms K said the Applicant has a great relationship with her two youngest children, “Child Y” who is 19 and “Child T” who is 17. The Applicant has taken them fishing, camping and four-wheel driving. He has become a very close family friend over the last six years and a father figure to Child Y and Child T. Despite the Applicant being ashamed of his criminal history he has been upfront with her about it. She said the Applicant has been a member of the Rural Fire Service in Town A for many years and has contributed to a number of community fundraisers.[65]
[65] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure C.
Ms K suffers from schizoaffective disorder.[66] She was diagnosed in 2007.[67] Prior to that, she had started using amphetamine when she was around 19 years old. She stopped taking drugs for several years when she had children but later resumed her drug use. She found it relatively easy to stop taking methamphetamine, but hard to stop taking marijuana. She last used marijuana around three years ago[68] when she was put on a Mental Health Order. She came to be on that because she had a psychotic break and was admitted to hospital. She was in the high dependency ward and, although she cannot remember doing this, she sharpened a toothbrush and stabbed a security guard.[69] She remains subject to the Mental Health Order.
[66]    Transcript, page 68, lines 45 and 46.
[67]    Transcript, page 69, lines 1 and 2.
[68]    Transcript, page 69, lines 15 to 28.
[69]    Transcript, page 69, lines 4 to 14.
Ms K credits the Applicant with helping her to remain clean from amphetamines, including counselling her and teaching her strategies to remain abstinent.[70] Ms K used to call the Applicant every time she got cravings for drugs and he talked her out of it and reminded her of the strategies he had taught her.[71] She has been abstinent from methamphetamines for around 18 months and she believes that in order to get off the Mental Health Order she needs to be clean for three or four years.[72] A condition of the Mental Health Order is that she is tested for illicit drugs every two weeks. She claimed that she comes up clean every single time. She said her parole officer told her that she is a new person, a changed person from when she first met her.[73]
[70]    Transcript, page 69, lines 30 to 38.
[71]    Transcript, page 70, lines 10 to 20.
[72]    Transcript, page 70, lines 40 to 48.
[73]    Transcript, page 71, lines 1 to 11.
Ms K said that if the Applicant is deported, she would be overwhelmed with grief and it would also affect her financially because the Applicant’s plans are to secure employment and financially support her and her children.[74] She will be devastated and she is worried that she may relapse into drug use and end up back in hospital. She will be all alone in life and that will have a major impact on her. [75] She described her mental health as fragile at the best of times. She would not be able to visit the Applicant in New Zealand because the Mental Health Order precludes her from travelling overseas.
[74] Transcript, page 67, lines 17 to 20.
[75] Transcript, page 69, lines 30 to 38.
Ms K said she believes that together she and the Applicant can help each other stay clean. She currently attends ATODS and online drug counselling.[76] She has a friendship group of prosocial people.[77] She and the Applicant intend to attend Narcotics Anonymous meetings and continue online counselling.[78] She thinks she can help the Applicant with his rehabilitation by being supportive, being available if he feels the need to talk, and by reminding him of the strategies that he taught her.[79] Ms K lives in the nearby Town C but she believes she will still be able to see the Applicant as she can travel to Town B and he can travel to Town C on weekends.[80]
[76]    Transcript, page 69, lines 30 to 38.
[77]    Transcript, page 70, lines 22 to 31.
[78]    Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure C.
[79]    Transcript, page 68, lines 20 to 25.
[80]    Transcript, page 72, lines 7 to 13.
Ms K’s daughter had a difficult childhood having been diagnosed with PTSD, depression and anxiety and having suffered from anorexia for most of her adolescence. Ms K thinks the Applicant has a calming effect on her and that he is an excellent mentor to her son. Their biological father is around but he has a problem with alcohol and can become angry and verbally abusive. At one point he threw their daughter out of his home.
Ms K wants her son to have a positive role model in his life so he can learn how to be a man without having to resort to anger and violence, and she thinks the Applicant is a good example.[81]
[81] Transcript, page 67, lines 10 to 15.
Ms K’s son currently lives with her and spends some time with his biological father.[82] Before the Applicant was incarcerated, he lived with Ms K and both children.
[82] Transcript, page 72, lines 37 and 38.
Ms K’s son provided a statutory declaration in which he said he has an immensely close relationship with the Applicant. He described him as a father figure to him and his sister. He is aware of the drugs offences, but he has never seen the Applicant use drugs. The only time he has ever heard the Applicant mention drugs was when he was explaining his desire to overcome his addiction. He has seen significant improvement in his mother’s lifestyle choices, physical health and mental health throughout the Applicant’s relationship with her. He considers that the Applicant has given him valuable advice which has helped him overcome obstacles during his adolescence. He said of the Applicant is deported it would be like losing a father.[83]
[83] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions Annexure D.
Ms K’s daughter also provided a statutory declaration. She described the Applicant as her stepfather and an important and integral part of her well-being. He has provided her with guidance and is a loving fatherly figure whom she trusts completely. When the Applicant started dating her mother, it was like she was a completely different person - she had not seen her mother smile and giggle like that for a long time. She credited the Applicant with having done wonders for her mother’s mental health and general outlook on life. She does not think her mother would be able to cope without the Applicant. She said the Applicant had given her the push she needed to get a job and become an independent woman, and that he has done more for her in the short time she has known him that her biological father did in 19 years.[84]
[84] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions Annexure E.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires 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.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction, relevantly, 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)…;
(iii)…;
(b)…;
(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)…;
(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).
The Applicant has committed two violent offences which appear to arise from one episode. The details and injuries caused are not known although there must have been some injury to warrant the offences being assault occasioning bodily harm. The Applicant was sentenced to 150 hours of community service which was later varied to a $2,000 fine. The sentence suggests that the offending was toward the lower end of the spectrum for that kind of offence. Still, by their nature, violent offences are regarded very seriously for the purpose of the Direction.
The facts of the first tainted property offence are not known. The Applicant was fined $350 for that offence as well as possession of utensils and no conviction was recorded. The offending seems relatively minor. In 2012 he was fined $300 in relation to the possession of a watch.[85] In 2014, the police located some equipment that is commonly used for producing that purpose in a car that the Applicant was standing next to. Another person was sitting in the driver’s seat. The car contained butane gas cartridges, matches, hydrochloric acid and caustic soda.[86] He was convicted in 2015 of possessing property that was reasonably suspected of being tainted property in relation to these items and sentenced to one month imprisonment, although the police facts do not indicate why the property was suspected of being stolen. While there is no evidence that the Applicant stole any property, dealing in stolen property generally creates a market for it which encourages others to steal. This offending, being relatively infrequent, unsophisticated and involving only a few items, is at the lower end of the scale of seriousness
[85]    Exhibit R3, Respondent’s Bundle of Summonsed Materials, page 38.
[86]    Exhibit R3, Respondent’s Bundle of Summonsed Materials, page 175.
The Applicant committed multiple unlicensed driving offences, and between 1995 and 2013 he was caught speeding five times. While speeding is inherently risky behaviour there is no evidence that the Applicant tangibly increased the risk to other drivers when he was speeding on these occasions. Five speeding offences over an 18 year period, while undesirable, is not frequent. The Applicant’s traffic infringements in totality suggest a disregard for road rules and regulations.
The Applicant gave evidence that some of his breaches of bail were due to a medical condition he was suffering from which required him to be hospitalised for some periods of time. There were a lot spanning a lengthy period. I think it likely that many were a function of his disorganised, drug-affected lifestyle. The breaches of bail demonstrate a disregard for the law and administration of justice.
So does the Applicant’s long-term use of illicit substances. It is apparent that when terms of imprisonment were imposed, they reflected the Applicant’s recidivism in the face of less serious punishments rather than the seriousness of the actual offences for which he was sentenced. Those sentences were imposed as a last resort because community based orders had not had a sufficient deterrent effect on him. His offending was frequent although there were two long periods when he managed to stay out of trouble.
In terms of the cumulative impact of his repeated offending, the Respondent submitted that the traffic infringements and the failure to properly dispose of syringes potentially put people at risk. I accept that submission.
The Applicant continued to offend even after being issued the notice to consider cancellation of his visa from the Department in 2015. While that notice did not contain a warning that further offending could affect his migration status, there is evidence that he took it that way at one time and did not make an effort to clarify the situation.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
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 that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the following relevant 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 available information and evidence on the risk of the non- citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
Should the Applicant engage in further violent offending the nature of harm includes physical and psychological injury.
Further dealing in tainted property is harmful in a general sense as it tends to encourage theft and dishonesty offences, although the Applicant’s contribution that that would be minimal based on his past offending.
The Applicant claimed that his drug dependency has never caused him to harm any person other than himself and that the drugs that he has been found with were always intended for his own personal use. I accept that except that the tainted property offences seemed to be linked to his drug use and/or drug affected lifestyle. Apart from that, I am not satisfied that the Applicant’s drug use has ever resulted in harm or risk of harm to anyone other than him, or that he ever supplied or sought to supply drugs to anyone else. Should the Applicant engage in further drugs offences of the nature he has previously engaged in, the person at most risk of harm is himself. I am cognisant of the general risk that failure to properly dispose of a syringe could harm someone although there is no evidence that the Applicant ever did, or would, dispose of a syringe in a way that created real risk to any other person.
There is no evidence that the Applicant’s traffic infringements have caused any harm, however driving unlicensed undermines the licensing system which is intended to ensure only those who have met and adhered to certain standards of driving behaviour are allowed to drive. Speeding is an activity that, by its nature, tends to increase the risk of accidents. Further infringements would carry a theoretical, generalised risk of harm to other road users.
Likelihood of engaging in further criminal or other serious conduct

In his written and oral evidence, the Applicant was frank about his substance abuse and his offending. I am satisfied that he is not attempting to deceive himself or anyone else about his past conduct or the challenges he faces going forward.
The violent offences that the Applicant committed were committed over 30 years ago. He told Ms Bostock that the assault had changed him in that he felt disgusted, and he made a conscious decision from then onwards to “run from conflict”.[87] The Applicant claimed that he had not been involved in any violent incidents in prison or immigration detention, and there is no evidence to the contrary. When asked about any involvement in violence in immigration detention, he described consciously avoiding conflict and gave an example of agreeing to move rooms twice to accommodate other inmates.[88]
[87] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure B.
[88] Transcript, page 18, lines 20 to 40.
The traffic infringements and breaches of bail, which manifested a disregard for the law, occurred in the context of ongoing drug abuse. It seems that the tainted property offences did too. The pertinent risk in the Applicant’s case is the risk that he will relapse into drug use.
Until recently the Applicant had not done any kind of counselling in relation to the trauma he experienced in his childhood. International Health and Medical Services (“IHMS”) records indicate that since late November 2021, the Applicant has attended torture and trauma counselling on a weekly basis. He thinks that counselling is benefiting him.[89]
[89] Transcript, page 38, lines 9 to 19.
The Applicant readily conceded that in the past he has used drugs to cope with stressful life events, and that there were times when drugs were a part of his life regardless of what he was going through because he had an addiction. He described drugs as an ongoing part of his life that masked everything and enabled him to escape what was going on. He said it was not until he cleared his mind of drugs that he realised the damage they were doing and how they were not actually helping.[90]
[90] Transcript, page 39, lines 22 to 39.
The Applicant admitted that during his previous incarceration the reason he did not take drugs was that they were not available. He said he had intended on getting drugs when he could. He said that now is the first time he has ever not taken drugs without the intention of trying to get them.[91]
[91] Transcript, page 40, lines 30 to 38.
The Applicant conceded that he continued to use drugs when he was subject to bail and community-based orders, and that even after being convicted and punished in relation to drugs offences he did not consider that his use of marijuana and amphetamines was really a problem.[92] He also conceded that this is not the first time he has tried to give up drugs.
[92] Transcript, page 48, line 26 to page 49, line 17.
When he was asked how the Tribunal could be satisfied that this time he will change his behaviour, he said his behaviour has already changed and that the change came about when he realised he wanted a better life for himself. He referred to having given up opiates, saying once he made the decision to give up, he never used them again.[93] He now realises that marijuana and speed were bigger issues, and he is not going to give those drugs the opportunity to sap and suck anymore life out of him. He said it would be a gross disrespect on his behalf if he were to fall back into that old life when he had people supporting him and believing in him.[94]
[93] Transcript, page 41, lines 36 to 48.
[94] Transcript, page 42, lines 1 to 10.
The Applicant put forward his relationship with Ms K as part of his reasons for not wanting to take drugs anymore. He said when their relationship started, he realised that he could be happy and fulfilled again, and the urges to fill his void with drugs was replaced. He saw less and less of the “old crew” and started building a life with her and her two youngest children. He described Ms K as a positive influence in the sense that because of her he is less inclined to take drugs, not wanting to expose her to his drug use which she would not tolerate. He described her gentle nature, quiet company and her encouragement. He has not taken drugs since he was incarcerated, being six months free of all substances. He has a belief in himself and a strength he has never had before. He has access to drugs on a daily basis in immigration detention and he does not have any difficulty refusing them. He wants to be a contributing member of the community and society again, and to be a better man, father, son and grandparent, and a caring and loving husband to Ms K.
The Applicant said that if Ms Kay were to resume drug use he would not tolerate it as drugs cannot be part of their lives. He said a choice would have to be made and she would have to address the problem, not indulge in it. He said there cannot be any compromise,[95] and that he would not continue his relationship with her but he would try to support her and guide her.[96]
[95] Transcript, page 43, lines 28 to 44.
[96] Transcript, page 44, lines 1 to 14.
The Applicant considers that employment is important to his rehabilitation and he intends to work if he is released to the community. He has a job offer from a local builder in Town B,[97] and Mr D has offered him accommodation in Town B. As canvassed above, he has started attending Narcotics Anonymous and he plans to continue that in the community as well as doing counselling. He has the support of many people in the community.
[97] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure L.
Ms Bostock provided a report[98] for the purposes of these proceedings. On 22 November 2021, she interviewed the Applicant for around two and a half hours, and she interviewed Ms K for around half an hour.
[98] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, Annexure B.
Ms Bostock said the Applicant described a loving relationship with his mother but strained relationship with his father. He remains afraid of his father. He noted that long standing poly-substance drug dependence had affected his ability to participate in the workforce, however felt that he had a strong work ethic when he was able to work.
Both the Applicant and Ms K described their relationship as loving and supportive. The relationship started when Ms K was on a Mental Health Order and living in supported accommodation. Ms K said the Applicant had a calming effect on her and that he had assisted her with helpful strategies to manage drug craving and maintain her goal of abstinence such as writing a “pros and cons” list for using/not using drugs; to reflect on how important change is to her as well as “grounding” techniques. Ms K said she felt confident that she and the Applicant could maintain their abstinence from drugs together particularly with the supports currently in place. Ms K described the Applicant as “kind and gentle” and when asked about violence she said “he wouldn’t even get angry”.
The Applicant reported that he was diagnosed with Anxiety and Depression about ten years ago by his General Practitioner. At the time he was in an unhealthy relationship and he felt that “things were getting on top of” him and that his life lacked purpose and meaning. He was prescribed pharmacological treatment and attended “a few” counselling sessions however reported that he failed to notice improvement in his mental state. His employer at the time also noticed a decline in his mood and recommended he see a psychologist. He reported that his mental health “deteriorated quite a lot” and he recognised that his unhealthy relationship was detrimental to his mental health.
Currently, he finds it “hard to get up every day” and he spends much time crying in the shower. He has recently requested psychological support from the detention centre. He reported suicidal ideation. He is distressed at the thought of being deported to New Zealand and passing away there, and he ruminates often on whether his mother would be able to come and claim his body and bring him “home” should his fears eventuate. He said he would have no support in New Zealand, and he struggles with the thought of being separated from Ms K, home, and his family.
He reported that his use alcohol had not been problematic. Rather, he reported polysubstance use disorders consisting of opioids, marijuana and amphetamines. The Applicant said he now realised that to be successful in ceasing substance use, one had to be intrinsically motivated. He said being in custody had helped him to totally cease use, and that he is no longer interested in substance use.
Ms Bostock diagnosed the Applicant with Cannabis-Related Disorder and Stimulant Use Disorder, both in early remission, noting that he is in an environment where drug use is restricted.
In relation to the two periods of several years when the Applicant did not offend, he said during those times, he was employed and relatively stable. Conversely when he was offending, he had poor mental health associated with life stressors that led to increased drug use.
Based on her application of a risk assessment tool that takes into account relevant static and dynamic factors, Ms Bostock assessed the Applicant as having a medium risk of reoffending. I asked Ms Bostock what sorts of offending the risk related to. She indicated that the risk assessment tool she used measures the risk of general offending which includes violence and substance use. However, she added that one should look at the pattern of previous behaviour. She opined that she would not expect to see new types of offending to emerge, and she thought it very unlikely that he would suddenly become a violent person, recognising that the assaults were committed over 30 years ago and the Applicant had decided he did not want to behave that way. Ms Bostock noted that the Applicant’s criminal history predominantly consisted of the kinds of offences that occur when a person is dependent on substances. She said she did not detect anti-social patterns, pro-criminal attitudes or lack of empathy in the Applicant. She concluded that the Applicant’s risk of re-offending was based on the pattern in his criminal history to do with drug use.[99]
[99] Transcript of proceedings on Tuesday 18 January 2022, pages 9 and 10.
In terms of the risk of further unlicensed driving infringements, the Applicant is determined to enter into a payment plan with SPER so he can apply for a license and his brother might be able to help him with that. Until then, other people are willing to drive him around. I think there is a minimal risk of further unlicensed driving.
Ms Bostock identified that the Applicant had many symptoms consistent with PTSD which she hypothesised began with the onset of family violence in the Applicant’s formative years. Although she had not gone through the process for a formal diagnosis, she was confident that the Applicant suffered from PTSD.[100] She noted that there is an established link between PTSD and substance use disorders. She noted that the Applicant had not had any intensive, formal psychological treatment for either his mental health or his drug use (although he has had some trauma counselling and some engagement with Narcotics Anonymous since his interview with Ms Bostock). She noted that the Applicant may be eligible for counselling at no cost under Victims Services or its equivalents, on the basis of having been the victim of a violent crime. This would enable him to access trauma-informed counselling to address the PTSD symptoms he presently experiences.
[100] Transcript page 10 lines 39 to 45.
The Applicant appears sincere in his resolve to stay away from drugs if he is released to the community, and he has a lot of support. The witnesses who offered their support are family members and people who have been friends with the Applicant for many years. My impression is that these people are offering real support over the long term. Ms Bostock thought the support of these people was critical to the Applicant’s rehabilitation, for example because they could assist if the Applicant were to relapse. She considered that the Applicant’s relationship with Ms K and his tendency to support people who are having a hard time was a positive factor. She thought the Applicant enjoyed the helping role, he knows what it is like to struggle, and that helping people comes with a sense of purpose and a sense of belonging in the community. She saw this as pro-social and rewarding.[101]
[101] Transcript of proceedings on Tuesday 18 January 2022, pages 11, lines 23 to 30.
I am not satisfied that there is any real risk that the Applicant would engage in further violent offending. There is a low risk of further unlicensed driving. There is currently a moderate risk of further drug offending although the Applicant is committed to his rehabilitation in the community. Even if the Applicant relapses into substance abuse, the risk of harm to others in the community is minimal based on his previous offending and Ms Bostock’s risk assessment.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs to a limited extent against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. I am not satisfied that the Applicant has engaged in family violence. Accordingly, this Primary Consideration is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·     whether there are other persons who already fulfil a parental role in relation to the child;
·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant claims that the following minor children will be impacted by the decision:
·     his two grandchildren who are aged eight and five;
·     his nephew, who is nearly 18 years old, and his niece who is eight years old. These are Ms R’s children;
·     one of his brother’s son’s, aged ten;[102] and
·     his step-son, who is 17 years old.
[102] Exhibit G1, Section 501 G documents, G2 page 61; Transcript, page 26, lines 35 to 39; Exhibit A1 Applicant’s Statement of Facts, Issues and Contentions, Annexure A.
With the exception of Child T, the Applicant has not fulfilled a parental role with respect to any of these children. He said he did not spend as much time with his nieces and nephews as he could have because he tried to keep his drug problem away from his family. He thinks he could now spend more time with them.[103] I accept that to an extent the Applicant has been a loving and engaged uncle and grandfather to his niece and nephews, and grandsons, respectively. These children all have parents fulfilling the parental role and there is no evidence that they are not well cared for. The Applicant has never financially supported these children,[104] and there is no evidence that he would be called upon to do so. The Applicant has had very little contact with these children or Child T since he was incarcerated because he would rather shelter them from what he is having to go through.[105]
[103] Transcript, page 27, lines 5 to 24.
[104] Transcript, page 27.
[105] Transcript, page 25, lines 30 to 44; page 26, lines 14 to 20 and lines 41 to 48.
If the Applicant is returned to the community, he intends to spend time with his grandchildren, teach them to fish, take them to the beach and anything they want. He would like to attend school events and generally be available to them.[106]
[106] Transcript, page 22, lines 1 to 15.
With respect to Child T, he has known him mostly in the capacity as a friend of Ms K and in the last year as a step-father. I accept that the Applicant’s involvement in Child T’s life, particularly as a loving and supportive partner to Child T’s mother, has been very positive for Child T, and that Child T misses him and wants him back. Child T’s biological father is involved in his life although it is unclear the extent to which this is a positive thing for Child T.
The Applicant would be able to maintain telephone contact with all these children from New Zealand. In that way he could maintain his relationships with the children, but he would not be able to take them fishing or camping, attend school events and enrich their lives in other ways that require his physical presence.
There is no evidence that the Applicant’s drug-taking had a detrimental effect on any of these children, and I am not satisfied that it would in the future, although he would have limited contact with his grandchildren if he were to relapse. Accordingly, his continued presence in Australia is likely to be beneficial to all of these children.
Conclusion: Primary Consideration 3
Taking into account the best interests of the children mentioned above, this Primary Consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa to a moderate extent.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the 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:
(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.

Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
I note that none of the matters in paragraph 8.4(2) above apply here.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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 above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was 22 months old. He is now 54 years old;
·the Applicant commenced taking illicit drugs in his teen years, and he committed his first offence when he was around 18 years old;
·the Applicant has repeatedly broken Australian laws over a period spanning 35 years and for the most part he was not deterred by the intervention of the criminal justice system, although he did beat an addiction to opiates;
·the Applicant’s violent offending is dated, but it must be regarded as very serious;
·the balance of the Applicant’s offending did not cause or risk harm to any person except himself, although the tainted property offences are of a kind that tend to drive theft and some traffic infringements are of a kind that tend to increase risk of collisions;
·there is a risk that he will re-offend but the harm to members of the Australian community would be minimal;
·the Applicant has strong and enduring connections to the community through family, friends and community groups;
·the Applicant has held employment although for the last several years he has been unemployed. He has done a great deal of voluntary work in his local community, and he has been a supportive friend to people struggling with adversity; and
·if he is removed to New Zealand, it will adversely affect his partner, his adult step-daughter and his adult family members, as well as Child T, his grandchildren and his minor niece and nephews (addressed above under Primary Consideration 3).
Conclusion: Primary Consideration 4
The Applicant has repeatedly failed to meet the Australian community’s expectation that non-citizens respect and obey our laws. This Primary Consideration weighs in favour of non-revocation of the cancellation of the Applicant’s visa. However, considering all the relevant factors, I allocate it limited weight.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d). I will address Other Consideration (d) first.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant came to Australia as a toddler. He has lived in Australia for over 52 years. He commenced offending at the age of 18, which was 16 years after he arrived in Australia. His offending spans 35 years with two lengthy gaps.
The Applicant has held employment although in the last several years he has been unemployed. He has made very significant contributions to the community through various forms of organised volunteer work and by helping individuals in the community. He has strong, long-standing social ties to the community. He has helped to fight fires that threatened Town A and he risked his life to save a friend in dangerous waters. Many people provided evidence of their friendships with the Applicant, the support he has given them over the years and their willingness to assist him in his rehabilitation. The Applicant’s connection to, and contribution to, the Australian community goes very much in his favour in my assessment of this Other Consideration.
The Applicant’s family in Australia includes his mother, father, brother and sister-in-law, sister, three nephews, two nieces, son and two grandsons, Ms K and her two youngest children. The evidence is overwhelmingly that he has strong, positive relationships with all these family members except for his father with whom his relationship is strained. Even so, his father provided a letter of support. The Applicant maintained contact with his family while trying to keep his drug problem away from them.[107] It does not appear to be the case that the Applicant’s drug use and offending was an ongoing stress or burden for his family. Rather, it appears that their relationships with him were very positive.
[107] Transcript, page 10, lines 29 to 39.
The Applicant’s mother suffers from low iron levels, and she takes medication for cholesterol blood pressure, and she has a hearing disability which makes it difficult for her to communicate via telephone.[108] The Applicant’s father is a type 2 diabetic for which he takes medication and he also suffers from essential tremors which causes his hands to shake uncontrollably. The tremors have worsened over the last few months because of the emotional stress relating to the Applicant’s predicament.[109] While I accept this evidence, I am not satisfied that the Applicant’s parents are without support and need him in relation to their physical ailments.
[108] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions Annexure O.
[109] Exhibit A1, Applicant's Statement of Facts, Issues and Contentions, Annexure M
The Applicant tends to maintain relationships by being physically present, spending time with people, and doing activities with people. He has lived in the same area near his family for a long time. I accept that his physical absence will be acutely felt by his family if he is removed from Australia permanently. I accept the evidence about his mother’s emotional state, and I accept that it would worsen if the Applicant were deported. I accept that his removal from Australia would cause his siblings and son emotional hardship. I accept that it would be very hard on Ms K emotionally and could result in a deterioration of her mental health. As she is on a Mental Health Order with the support and supervision that entails, and as she would still be able to maintain communication with the Applicant, I am not convinced that his deportation would likely lead to her relapsing into drug use. I accept that the Applicant’s deportation would adversely impact Child Y as it would leave her without the only positive father figure she has, and a person who is a calming and encouraging influence in the context of her struggles with mental health. I am satisfied that the Applicant’s removal from Australia would also negatively impact his adult niece and nephew. I have addressed the impact on minor children in Primary Consideration 3.
Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Conclusion: Other Consideration (d)
Overall, I am satisfied that the Applicant’s links to the Australian community weighs heavily in favour of revocation.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, 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.
The Applicant is a 54 year old man who is able bodied and in good physical health. The most serious physical illness he has experienced was an ulcer six years ago. He suffers from PTSD and is currently experiencing suicidal ideation which is linked to the cancellation of his visa.
The Applicant speaks English which is widely spoken in New Zealand. He said he is not up to date with some slang terms that he has heard New Zealanders use in immigration detention, and he thinks he would find it uncomfortable to fit into the environment in New Zealand.[110] I accept that, but I am not satisfied that this would be a substantial barrier to re-establishing himself. Nor am I satisfied that any cultural differences, which would be minor, would constitute a substantial barrier.
[110] Transcript, page 37, lines 10 to 16.
The Applicant does not know anyone in New Zealand. He met some of his father’s relatives who live in New Zealand when he was a child, but he did not remain in contact with them and does not know them.[111] If he returned to New Zealand he would not reach out to them.[112] He considers that his father’s violent attitude was probably a product of his upbringing. I am satisfied that the Applicant would not reach out to his father’s family and even if he did, there is no guarantee or even likelihood that they would provide any kind of support.
[111] Transcript, page 34.
[112] Transcript, page 35, lines 1 to 25.
It is well accepted that the social, medical and economic support available to New Zealand citizens is comparable to what is available to him in Australia. I am satisfied that the Applicant could access government income support and that he has reasonable prospects of securing employment as he has skills as a welder and boilermaker. I am satisfied that he could access mental health and rehabilitation services.
The Applicant finds the thought of being physically separated from everybody he loves and cares for horrifying.[113] He tends to conduct relationships in person and does not normally use the telephone much although he has done so while in custody. He suffered a deterioration in his mental health when the pandemic led to social isolation. In New Zealand he would have no familial or social support and he would be permanently separated from those who are close to him as it is most unlikely that his family could afford to visit and Ms K’s Mental Health Order does not allow her to travel. I am satisfied that these matters would have a substantial impact on his mental health, making it harder, but not impossible, for him to function and maintain basic living standards.
[113] Transcript, page 37, lines 1 to 8.
This Other Consideration (b) weighs in favour of revocation of the mandatory cancellation although not to a great extent.
(c) Impact on victims
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (c) is therefore neutral.
CONCLUSION
For 52 of the Applicant’s 54 years, he has lived in Australia. He has consistently, over many years, contributed to the Australian community through volunteer work and other altruistic acts despite a childhood marred by violence, his struggles with PTSD and his long-term drug dependence. There is every indication that if he is released to the community he will continue to contribute. His very serious offending happened over 30 years ago, the vast majority of his offending only hurt himself, and he currently poses minimal risk of harm to members of the Australian community. These matters stand out. Having weighed all the relevant factors, I am of the view that the Primary Considerations that favour non-revocation are outweighed by the Primary and Other Considerations that favour revocation.
Accordingly, I find that there is another reason to revoke the cancellation of the Applicant’s visa and I exercise the discretion to do that.
DECISION
The decision under review is set aside and the Tribunal exercises the discretion contained in section 501CA (4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa.

I certify that the preceding 159 (one hundred and fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

............................[SGD]............................................
Associate
Dated: 24 January 2022

Date of hearing: 5, 6 and 18 January 2022

Solicitor for the Applicant:

Ms Taraneh Arianfar

Migration Affairs

Solicitor for the Respondent
Ms Hannah Anderson

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G16 paged 1 to 211)

R

-

15 November 2021

A1

Applicant's Statement of Facts, Issues and Contentions (paged 1 to 26) and Attachments A to R

A

3 December 2021

3 December 2021

A2

Applicant’s Reply (14 pages) including Annexures A to F

A

29 December 2021

29 December 2021

A3

Statutory Declaration of Sharon Gibbons (2 pages)

A

2 December 2021

30 December 2021

A4

Letter of Applicant’s aunt (undated) (1 page)

A

-

30 December 2021

A5

Photos and Screenshots from Facebook group (12 pages)

A

-

30 December 2021

A6

Memoriam Notices (3 pages)

A

-

30 December 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (23 pages)

R

20 December 2021

20 December 2021

R2

Respondent’s Bundle of Evidence (RE1 to RE5, 84 pages)

R

-

20 December 2021

R3

Respondent’s Bundle of Summonsed Materials (SM1 to SM5, paged 1 to 1115)

R

-

23 December 2021

[2022] AATA 76

24 January 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G16 paged 1 to 211)	R	-	15 November 2021
A1	Applicant's Statement of Facts, Issues and Contentions (paged 1 to 26) and Attachments A to R	A	3 December 2021	3 December 2021
A2	Applicant’s Reply (14 pages) including Annexures A to F	A	29 December 2021	29 December 2021
A3	Statutory Declaration of Sharon Gibbons (2 pages)	A	2 December 2021	30 December 2021
A4	Letter of Applicant’s aunt (undated) (1 page)	A	-	30 December 2021
A5	Photos and Screenshots from Facebook group (12 pages)	A	-	30 December 2021
A6	Memoriam Notices (3 pages)	A	-	30 December 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (23 pages)	R	20 December 2021	20 December 2021
R2	Respondent’s Bundle of Evidence (RE1 to RE5, 84 pages)	R	-	20 December 2021
R3	Respondent’s Bundle of Summonsed Materials (SM1 to SM5, paged 1 to 1115)	R	-	23 December 2021