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

[2023] AATA 4249

Loulanting and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4249 (18 December 2023)

Division:GENERAL DIVISION

File Number:          2023/7194

Re:Beau Clinton Loulanting

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date of decision:               18 December 2023

Date of written reasons:         22 December 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 25 September 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

..........................[SGD]...........................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

22 December 2023

1. Mr Beau Clinton Loulanting (‘the Applicant’) is a 45-year-old man born in New Zealand on 8 June 1978. He first arrived here in November 1984. Between November 1984 and December 2018 the Applicant departed from and returned to Australia on multiple occasions.[1] The movement history looks like this:

   [1] R1, pp 57-61.

Date of arrival in Australia	Date of departure from Australia	Time spent in Australia (in number of days) (approx)
24-November-1984	24-March-1985	120
27-December-1991	11-January-1992	15
04-January-1996	23-January-1996	19
19-June-1999	03-July-1999	14
16-February-2000	22-February-2000	6
24-October-2002	29-October-2002	5
24-February-2003	10-April-2004	411
12-May-2004	14-January-2006	612
24-January-2006	05-May-2006	101
22-May-2006	11-August-2006	81
16-August-2006	17-July-2007	335
31-July-2007	06-September-2008	403
09-September-2008	05-June-2009	269
14-June-2009	01-January-2010	201
06-January-2010	16-June-2010	161
09-July-2010	03-December-2010	147
10-December-2010	18-February-2011	70
20-February-2011	23-July-2011	153
28-August-2011	17-February-2012	173
26-February-2012	20-July-2012	145
27-July-2012	13-October-2012	78
16-October-2012	23-February-2013	130
02-March-2013	28-September-2013	210
19-October-2013	19-January-2015	457
10-February-2015	14-June-2015	124
24-June-2015	19-September-2015	87
28-September-2015	29-December-2015	92
10-January-2016	14-February-2016	35
26-February-2016	09-August-2016	165
18-August-2016	24-April-2017	249
12-September-2017	09-January-2018	119
21-January-2018	30-November-2018	313
05-December-2018	05-December-2023	1826
Total Time Spent in Australia (approx)	7326 days or 20 years and 46 days

1. Put another way, during the approximate 7326 days or 20 years period from his initial arrival here in November 1984 to the present, he has spent over 20 years in this country which represents approximately 44 percent of his life.

2. At the time of his most recent arrival in Australia in December 2018, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’). That visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) on 20 October 2022 pursuant to

   
   

   s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).

3. The mandatory cancellation of the Applicant’s Visa was the result of him failing the character test[2] because on 19 March 2020 he received a custodial term of imprisonment of three years upon a conviction for ‘possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 3 but less than Schedule 4’.[3]

   [2] Pursuant to ss 501(6)(1) and 501(7)( c) of the Act.

   [3] R1, p 34.

4. As a result of the mandatory cancellation of his Visa, the Applicant was invited to make representations to the Respondent’s Department in order to seek revocation of the mandatory cancellation decision.

5. On 28 October 2022[4] the Applicant made representations to the Respondent’s Department seeking revocation of the mandatory cancellation decision. On 25 September 2023, a delegate of the Respondent decided to refuse revocation of the mandatory cancellation decision.[5] The Applicant was notified of this non-revocation decision on the same day which led to his lodgement of the instant application in this Tribunal seeking a review of the non-revocation decision on 2 October 2023.[6]

   [4] R1, pp 78-96.

   [5] Ibid, pp 10-31.

   [6] R1, pp 4-9.

6. For the  purposes of these reasons, the delegate’s non-revocation decision of 25 September 2023 will be referred to as ‘Decision Under Review’.

7. The hearing for the instant review application proceeded before me in-person on 

   
   

   5 and 6 December 2023 (‘the Hearing’). The Hearing received both oral and written evidence. The written evidentiary material was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.[7] This Hearing received oral evidence from:

   ·the Applicant;

   ·Ms Kristina Van Tovier (Applicant’s partner); and

   ·Dr Gavan Palk (forensic psychologist).

   [7] See generally, Transcript, pp 4 and 5.

   LEGISLATIVE FRAMEWORK

8. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4 The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

9. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.

10. There are therefore two issues presently before the Tribunal:

    (a)whether the Applicant passes the character test; and if not

    (b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.

    Does the Applicant pass the character test?

11. It is beyond argument that the Applicant does not pass the character test. I agree with the position taken by the Respondent[8] to the effect that the Applicant’s failure to pass the character test arises as a matter of law.[9] This is because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of three years on 19 March 2020.[10] Accordingly, it can be safely found that he does not pass the character test and, as a consequence, cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

    Is there another reason why the decision to cancel the Applicant’s Visa should be revoked?

    [8] R2, p 3, [12]; R1, p 34.

    [9] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].

    [10] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.

12. Section 499(2A) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about either the performance of those functions or the exercise of those powers. For present purposes in reviewing a non-revocation decision pursuant to s 501CA(4) of the Act, the Tribunal must have regard to the ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).

13. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

    
    

    non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

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

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

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

    4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

    
    

    non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

14. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia:

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

15. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

16. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by

    
    

    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

17. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (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.

18. I will consider each in turn.

    The nature and seriousness of the Applicant’s conduct to date

19. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

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

    (i)     violent and/or sexual crimes;

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

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

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

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

    (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

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

    (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

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

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

    (e)the cumulative effect of repeated offending;

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

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

    Paragraph 8.1.1(1)(a)

20. Paragraph 8.1.1(1)(a) of the Direction contains three categories of offending which, if committed by a non-citizen seeking restoration of a visa, are said to compel a merits-based decision-maker to find such offending to be ‘very serious’. The three categories are (1) violent and / or sexual crimes;[11] (2) violent offending against women or children;[12] and (3) domestically violent conduct regardless of whether or not a sentence was imposed.[13]

    [11] Paragraph 8.1.1(1)(a)(i) of the Direction.

    [12] Paragraph 8.1.1(1)(a)(ii) of the Direction.

    [13] Paragraph 8.1.1(1)(a)(iii) of the Direction.

21. At first blush, none of the Applicant’s offending falls within any of the three descriptive realms in paragraph 8.1.1(1)(a) qualifying it as ‘very serious’ conduct. The Respondent contends the categories of offending in paragraph 8.1.1(1)(a) giving rise to a finding of ‘very serious’ are not exhaustive,[14] presumably because of the words ‘without limiting the range of conduct that maybe considered very serious’ appearing in the chapeau to this paragraph. I will not cavil with that contention.

    [14] See R2, p 6, [26].

22. If there is to be an attribution of ‘very serious’ to the Applicant’s offending, on what basis or bases can such a finding be made? The criminal history discloses the commission of some 48 offences committed over a period spanning (in sentencing terms) 14 and a half years. This offending has been dealt with at 12 separate sentencing episodes. This equates to the commission (and sentencing) of four offences per annum. Of those 48 offences 38 have been committed since about the middle part of 2018.

23. The next inquiry should involve a requirement to establish a longitudinal understanding of the type of offences the Applicant has committed. What type of offences has the Applicant committed? In terms of broad categories of offending, he has convictions for unlawful conduct in the realms of:

    ·public nuisance;

    ·possession of weapons-type offences:

    opossession of a knife in a public place;

    opossession of unauthorised and prohibited explosives;

    ·unlawful use of a motor vehicle;

    ·property offences:

    ostealing;

    oreceiving tainted property;

    obreaking and entering;

    opossession of suspected stolen property;

    ·drug offences:

    opossession of paraphernalia for the consumption of illicit drugs;

    opossession of dangerous drugs;

    ·failure to follow lawful authority and / or breaching lawfully made orders compelling him to do or refrain from doing something:

    ocontravene direction or requirement;

    obreach of community service order;

    obreach of probation order;

    ofailure to appear in accordance with undertaking;

    obreach of bail;

    obreach of suspended sentence;

    ocontravene police banning notice;

    ·fraudulent / dishonest offending.

24. The Applicant has also compiled a not-insignificant traffic history in this country. It is a history that runs - in terms of offences committed – from April 2003 to August 2020. His driving privileges have been suspended on at least nine occasions, the most recent being 15 June 2023. His traffic offences have attracted the imposition of some 45 demerit points across the period of offending. The cumulative period of his suspension from driving across the traffic history is eight years. His most recent disqualification from driving was imposed in August 2020 when he was disqualified from driving for a period of two years.

25. The Applicant’s most recent sentencing history is likewise sobering:

    ·on 19 March 2020, the Applicant received a regime of custodial sentencing totalling two years, three months and nine days.[15] He was immediately released on probation;

    ·while on probation, he committed further offences dealt with on 20 November 2020. These further convictions breached the extant parole order. For this further offending, the Applicant received additional sentences but was granted an immediate parole release date;

    ·on 29 April 2021, he was convicted of a breach of this parole order (i.e. granted on 20 November 2020). For this breach he was sentenced to serve 18 months of the originally suspended period of imprisonment with parole release that day (i.e. 29 April 2021). He was specifically told that at the end of that 18 month period, he would have another 10 months where he would be subject to the original operational period of that suspended sentence. The learned sentencing Judge[16] told him ‘So you are still at risk of coming back before me for a breach and I have to decide what to do with you on that occasion…’;[17]

    ·‘that occasion’ transpired consequent upon the Applicant’s return to custody on 31 July 2022 for the commission of yet further offences. ‘That occasion’ was 6 October 2022 that saw the Applicant convicted of 18 offences resulting in the indefinite suspension of his parole status;

    ·once again, the Applicant was granted a parole eligibility date equivalent to the date of his sentencing (i.e. 6 October 2022) but this appears somewhat at odds with (1) the Queensland Corrective Services (‘QCS’) sentencing record which records his ‘earliest discharge date’ as 28 February 2023;[18] and (2) the Applicant’s Personal Circumstances Form (‘PCF’) which is dated 28 October 2022 and in which the Applicant records his address as ‘Palen Creek Correctional Centre’.[19]

    [15] R1, p 59.

    [16] Her Honour Justice Ryan, Supreme Court of Queensland.

    [17] R1, pp 41-42.

    [18] Ibid, p 55.

    [19] Ibid, pp 78-79.

1. The question then becomes whether conduct amounting to (1) an offending history that has been intensively committed; (2) much of which has been recently committed (i.e. from 2020 to 2022); (3) evidencing an appalling lack of respect for (and repeated breaches of) non-custodial forms of punishment—can be safely found to be conduct that is ‘very serious’ for the purposes of this paragraph 8.1.1(1)(a) even though it does not, strictly speaking, fall within auspices of sub-paragraphs 8.1.1(1)(a)(i), (ii) or (iii) ?

2. I am persuaded that it can. To my mind, the Applicant’s conduct arising from thrice breaching probation or parole orders where he was given the not-significant benefit of immediate release is, in and of itself, very serious conduct:

   ·on 19 March 2020, on the day he was sentenced, he was immediately released on probation. He breached that parole;

   ·on 20 November 2020, on the day he was sentenced, he was again immediately released on parole. He breached that parole;

   ·on 29 April 2021, he was convicted of breaching the immediately preceding parole order made on 20 November 2020 and, yet again, he was immediately released on parole. He breached this parole consequent upon further offending dealt with on 6 October 2020.

3. I am thus of the view that the totality of the Applicant’s offending in this country, while not falling within the definitional auspices of sub-paragraphs 8.1.1(1)(a)(i), (ii) or (iii) is nevertheless conduct that can be found to be ‘very serious’ for present purposes. I so find.

   Paragraph 8.1.1(1)(b)

4. The Applicant has no conviction for conduct involving him causing a person to enter into a forced marriage or of him otherwise being a party to a forced marriage.[20] Given the formulation of the character test referrable to the instant decision, which test the Applicant fails as a matter of law,[21] I am not required to make any finding about whether any of his conduct forms the basis of a finding that he does not pass an aspect of the character test that is dependent on my decision.[22] The material does not contain any reference to a crime committed by the Applicant during his time in immigration detention.[23]

   [20] Paragraph 8.1.1(1)(b)(i) of the Direction.

   [21] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].

   [22] Paragraph 8.1.1(1)(b)(iii) of the Direction.

   [23] Paragraph 8.1.1(1)(b)(iv) of the Direction.

5. However, the Applicant has a multiplicity of convictions for crimes committed against ‘government representatives or officials due to the position they hold, or in the performance of their duties.’[24] The criminal history discloses three convictions for ‘contravene direction or requirement’[25] and eight convictions for ‘contravene police banning notice’.[26] This convicted conduct falls squarely within sub-paragraph 8.1.1(1)(b)(ii) of the Direction and is thus strongly supportive of a finding that the totality of the Applicant’s conduct has been of an, at least ‘serious’, more likely ‘very serious’ nature. I so find.

   [24] Paragraph 8.1.1(1)(b)(ii) of the Direction.

   [25] Pursuant to s 791(2) of the Police Powers and Responsibilities Act (2000) (Qld).

   [26] Pursuant to s 602Q of the Police Powers and Responsibilities Act (2000) (Qld).

   Paragraph 8.1.1(1)(c)

6. In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

   (i)    any violent offending he may have committed against women and children;[27]

   (ii)   acts of family violence;[28] and

   (iii)  any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[29]

   [27] Paragraph 8.1.1(1)(a)(ii) of the Direction.

   [28] Paragraph 8.1.1(1)(a)(iii) of the Direction.

   [29] Paragraph 8.1.1(1)(b)(i) of the Direction.

7. The Applicant has no convictions in the categories excluded for consideration by this sub-paragraph 8.1.1.(1)(c). This means that all of his convictions fall for consideration under this sub-paragraph. I have already mentioned that the criminal history records the commission of some 48 individual offences dealt with at 12 separate sentencing episodes. That offending and the sentences resulting from it has produced a multi-faceted sentencing regime:

   ·he has been fined on at least seven occasions with the total of those fines amounting to $1,960;

   ·on at least five occasions he has had the benefit of a ‘no conviction recorded’ notation on his criminal history;

   ·on at least three occasions he received an order for probation or community service in lieu of time in actual custody;

   ·multiple custodial terms have been imposed as follows:

   o25 October 2013: sentenced to 12 months imprisonment;

   o19 March 2020: custodial terms imposed were:

   -    three months;

   -    six months;

   -    three years;

   o20 November 2020: custodial terms imposed were:

   -    nine months;

   -    six months;

   -    nine months;

   o29 April 2021: custodial term imposed was:

   -    18 months;

   o6 October 2022: custodial terms imposed were:

   -    one day;

   -    14 days;

   -    seven days;

   -    seven months.

   ·not insignificantly, many of these non-custodial terms were ordered to be served concurrently as opposed to cumulatively.

8. It is well – established that sentences involving the imposition of terms of imprisonment represent the last resort in the sentencing hierarchy. The imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offences committed by this Applicant.[30]

   [30] PNLB and Minister for Immigration and Border Protection [2018] AATA 162.

9. To my mind, the sheer scope of sentencing options imposed on the Applicant together with the cumulative totality of custodial terms amounting to eight years, 10 months and 22 days comprises a sentencing regime that clearly speaks to the very serious nature of his offending. I so find.

   Paragraph 8.1.1(1)(d)

10. Two questions are posed by this sub-paragraph. The first is whether the Applicant’s offending has been frequent? His is a criminal history involving the commission of some 48 offences dealt with at 12 sentencing episodes across an offending period of approximately 14 and a half years. He has committed an average of over three offences for each year of the offending history. He has appeared for sentencing on every other year for the duration of his offending history. There can only be one finding: the Applicant’s offending has most certainly been frequent.

11. The second question deriving from this sub-paragraph is whether the Applicant’s pattern of offending demonstrates any trend of increasing seriousness. There appear to be two phases to the Applicant’s offending history. The first spans the period (in sentencing terms) from April 2008 to October 2013. This phase saw the Applicant convicted of nine offences plus being found guilty of breaching previously imposed orders for probation and community service. The nine convicted offences were all punished by non-custodial sentences and no conviction was recorded for any of them.

12. For the respective breaches of the orders for probation and community service, convictions were recorded and he was re-sentenced for the original offences such that he was sentenced to a custodial term of 12 months but with an immediate release on parole. This first phase of offending therefore only attracted one custodial term (with an immediate parole release date) while the rest of this first phase offending was punished non-custodially.

13. The second phase of the offending presents a significantly higher level of seriousness. It runs (in sentencing terms) from May 2019 until October 2022. It saw the Applicant convicted for the commission of 39 additional offences. This offending was punished by cumulative head custodial terms approaching eight years. Apart from being more intensively committed, this second phase of the offending saw the Applicant involved in (1) drug offending with a commercial element; and (2) property offending involving property of greater value than the first phase of offending.

14. There is also a temporal element to the offending committed during this second phase which speaks to its increased seriousness. The first phase ran for about five and a half years. The second ran for less than three and half years. The first contains only one convicted breach of orders for parole and community service. I have earlier referred to the Applicant’s three breaches of orders for parole during 2020 and 2021. The first offending phase contains only one conviction for refusing to follow lawful authority. The second contains 10 such convictions. Twelve months of head custodial time were imposed in the first phase and almost eight years in the second.

15. It is this not difficult to conclude that superimposition of the second phase of offending over that of the first is clearly indicative of an increasing trend in its of seriousness. I am therefore satisfied that the Applicant’s offending has been frequent and that it does contain an increasing trend of seriousness. This sub-paragraph 8.1.1(1)(d) must therefore be found to volubly speak to the very serious nature of the totality of the Applicant’s offending in this country. I so find.

    Paragraph 8.1.1(1)(e)

16. This sub-paragraph looks for any cumulative effects to be gleaned from the Applicant’s offending. In my view, a plethora of cumulative effects are apparent. First, the Applicant has not experienced any deterrent effect as a result of the sentences imposed on him. This can be seen in a couple of facets of his offending. The abovementioned first phase of his offending was predominantly punished by non-custodial sentences. He took nothing from these sentences because in the second phase he quintupled his rate of offending that attracted virtually eight times the custodial time imposed during the first phase. Further, he has abjectly failed to experience, let alone be grateful for, the benefit of receiving the benefit  of immediate custodial release following the imposition of a custodial term which the Applicant has met predominantly in the breach rather than in the observance.

17. Second, the criminal history is convincingly demonstrative of someone who has failed to develop any modicum of respect for the lawful authority governing the Australian community to which he seeks a return. There are at least 11 convictions for contravening or refusing lawful authority. The criminal history is undeniably redolent of a person who will not yield to the lawful dictates of a document compelling him to do or refrain from doing something. There are numerous such examples in the history including breaches of bail, breaches of orders for performance of community service and for parole. A similar attitude to the laws and regulations governing the ownership and operation of a motor vehicle on Australian carriageways can be taken from the Applicant’s traffic history. Putting aside his purely traffic/driving offences (speeding and the like) one can see a multitude of traffic convictions around unlicensed driving. The totality of the Applicant’s history committed in the realm of both criminal and traffic offending leaves me in no doubt that a total failure of respect for lawful authority is now one of the clear outcomes of his offending.

18. Third, the nature and extent of the Applicant’s offending is surely indicative of a person who committed much, if not all of it, under the adverse influence of illicit drugs. The general tenor of the Applicant’s evidence is to suggest that it is his difficulties with illicit drugs that has been at the front and centre of his repeated offending. It is not novel or otherwise a stretch of the evidence to suggest and find that addiction to opioid substances – in the Applicant’s case predominantly methylamphetamine – so severely skews the moral compass of people such that their primary focus devolves into one of doing whatever it takes to satiate the craving for such drugs and to otherwise allow their personality to be completely dominated by the psychotropic impact created by such drugs after their ingestion. This explains the wanton and ‘I don’t care about the consequences’ theme readily apparent from the Applicant’s criminal history and the criminal histories of people similarly addicted to such substances.

19. Fourth, there is no need to re-state the nature and extent of the Applicant’s offending. Its intensively committed nature is such as to have engaged more than its fair share of the community’s law-enforcement, judicial sentencing and custodial resources. It is trite for the Applicant to suggest that not all of his offending was all that serious. That is to miss the point of the extent to which all manner of offending consumes the community’s resources. Those resources are consumed by offending as relatively tepid as a motorist being pulled over for a speeding offence as well as for offending requiring multiple police officers being mobilised to pursue multiple offenders. In both cases, the community’s resources are consumed. This Applicant has committed all of his offending by himself but when one has regard to the totality of his offending, there is little or nothing to suggest that significant community resources have been consumed in its detection, regulation and punishment. 

20. The abovementioned four cumulative effects of the Applicant’s offending thereby cause this sub-paragraph 8.1.1(1)(e) to volubly speak to the very serious nature of the Applicant’s unlawful conduct in this country.

    Paragraph 8.1.1 (1)(f)

21. Earlier in these Reasons[31] I particularised the Applicant’s movements in and out of Australia. While professing no expertise in the laws and regulations governing the movement of individuals across Australian borders, it is safe to presume that at least on some of those ‘re-entry’ occasions, the Applicant would have been compelled to fill out an incoming passenger card (or equivalent). Those cards usually require a returnee to make a declaration about whether they have any pre-existing convictions in this country and sometimes even elsewhere. Despite the significant number of times the Applicant has
    

    [31] See [1] of these Reasons.

    re-entered Australia following a departure, the material is silent about his incorrect completion of any in-coming passenger card (or equivalent). It is also not something the Respondent now propounds against the Applicant.

22. In these circumstances it cannot safely be found that the Applicant has provided false or misleading information to the Respondent’s Department and this sub-paragraph 8.1.1(1)(f) must be put to one side and rendered neutral for present purposes.

    Paragraph 8.1.1 (1)(g)

23. By letter dated 14 April 2014, the Applicant was notified by the Respondent’s Department that extent of his offending had come to their attention and, as a result, there was a risk to his migration status allowing him to remain in Australia. After considering the issue, the Respondent’s Department did, by letter dated 25 June 2014,[32] notify the Applicant that a decision had been made not to cancel his Visa on character grounds. The terms of the letter are clear because he was told the Visa he then held ‘…will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning’[33] (Underlining in original)

    [32] R1, pp 62-63.

    [33] Ibid, p 62.

24. The actual warning is clearly stated in the Department’s abovementioned letter of 25 June 2014. It appears in bold font and tells the Applicant the following in very clear terms: ‘Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.’[34] There can be no question the Applicant received this letter because it was sent by pre-paid registered post to his now – familiar residential address in suburban Brisbane.

    [34] Ibid.

25. Despite receipt of this warning in June 2014, there followed the abovementioned second phase of the Applicant’s offending history that saw the commission of some 38 offences that were dealt with at six sentencing episodes which attracted the imposition of head custodial time in a cumulative amount approaching eight years. This sub-paragraph 8.1.1(1)(g) thus very strongly militates in favour of a finding that the nature of the Applicant’s offending in this country has been very serious. I so find.

    Paragraph 8.1.1(1)(h)

26. The Applicant is currently aged 45 years and he spent the first 24 or so years of his life in New Zealand. The material is silent about whether he has compiled any history of criminal or other offending in New Zealand or any other country that could be classified as an offence or other unlawful conduct in Australia. The Respondent does not propound this
    sub-paragraph against the Applicant and I will put it to one side and render it neutral for present purposes.

    Conclusion about the nature and seriousness of the Applicant’s conduct

27. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

28. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

29. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

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

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

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

    (ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

30. As I have mentioned, the Applicant has a variously committed history of offending. In terms of harms that would be potentially experienced by members of the Australian community in the event of its recommission, I make the following findings:

    ·were he to again unlawfully take the property of others as his own, the owners of that property would be denied the use of that property which they have lawfully acquired and are otherwise absolutely entitled to enjoy and use as they see fit either in a personal sense or as part of any commercial enterprise they may be operating;

    ·any recommission of the Applicant’s traffic history would expose members of the road-using public to serious and even catastrophic harm. The Applicant cannot now be heard to say anything towards amelioration of his conviction for driving while under the influence of illicit drugs for which he was disqualified from driving for six months or for driving while disqualified for which he has on at least two occasions lost his driving privileges for a totality of four years. I have previously written of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle;[35]

    ·were the Applicant to again involve himself in offending around the possession of illicit drugs, there is little or nothing to cavil with the suggestion that this conduct would result in harm to the community due to the continued presence of such substances in the community. There seems little or no contest in the evidence that much of the Applicant’s offending was committed as ancillary activity to his primary unlawful conduct involving illicit drugs. Likewise with much of his property offending, weapons-type offending, unlawful use of motor vehicle offending together with his numerous convictions of being found in possession of paraphernalia associated with the consumption of such drugs.

    [35] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].

1. The extent of the Applicant’s unlawful conduct leads me to a finding that in the event of the recommission of all or part of it there could very well be harms suffered by members of the Australian community in the realms of physical harm, psychological harm, measurably material harm and even catastrophic harm. I so find.

   The likelihood of the non-citizen engaging in further criminal or other serious conduct

2. I will firstly review the Applicant’s evidence around recidivist risk. I will then review the evidence of his partner, Ms Kristina van Tovier. Then, I will review (1) evidence of a risk of reoffending assessment conducted by the QCS in March 2020; as well as (2) an Advice to Parole Board Report dated 22 July 2022 prepared by QCS; and (3) evidence of the forensic psychologist, Dr Gavan Palk. I will then make specific findings about recidivist risk culminating in a concluded finding about the actual recidivist risk represented by this Applicant.

   The Applicant’s evidence

3. The Applicant’s most recent written statement appears in the material and is dated

   
   

   31 October 2023.[36] The Applicant refers to his ‘poor mental health’[37] being a feature of his offending. He talks about having ‘taken the correct steps to resolve my mental health issues, including tackling my illegal substance abuse and current situation. I am currently completing relevant courses and receiving drug and alcohol counselling as well counselling for my past trauma.’[38] He also talks about ‘working hard while in prison and detention to rehabilitate myself and turn my life around.’[39]

   [36] A1.

   [37] Ibid, [45].

   [38] A1, [44].

   [39] A1, [45].

4. He refers to past struggles with confidence and self-esteem. Much of that he says derived from issues with controlling his weight which, he says, caused him to turn to illicit drugs ‘to keep weight down and get fake confidence.’[40] He has replaced this method of controlling his weight by a new – found love for exercise and fitness which he refers to as ‘my physical confidence.’[41] He also talks about a new – found confidence in public speaking which he refers to as ‘my mental and emotional confidence.’[42]

   [40] Ibid, [46].

   [41] Ibid, [47].

   [42] Ibid. [48].

5. The Applicant claims to ‘…have matured significantly and have become significantly more knowledgeable about my illegal substance abuse since my incarceration.’[43] He is of the firm belief that he has ‘..taken the correct steps to arm myself with the tools to deal with difficult situations. I have cut off all ties with negative peers including changing mobile numbers.’[44]

   [43] Ibid, [53].

   [44] Ibid, [54] – [55].

6. He : (1) fully accepts responsibility for his past conduct; (2) acknowledges its emotional and financial impact on victims; (3) is extremely remorseful for his past behaviour and makes no excuses for it; (4) wants to return to the domestic relationship he previously shared with Ms van Tovier and make the usual emotional and financial contributions to that relationship; (5) talks about experiencing personal deterrence which, in turn, ‘…has led me to understanding that impact of my offending on my partner, family, friends, my community, law enforcement and even the judiciary.’[45]

   [45] Ibid, [64].

7. In terms of future prospects he talks about having ‘…numerous job opportunities if allowed to remain in Australia. I also plan on eventually opening my own barber shop again, in the near future.’[46] If removed, he anticipates adverse impacts upon the stability of the domestic relationship he previously had with Ms van Tovier and that his 21 year old sister would be left alone in Australia because he says he is ‘the closest family she has here in Australia.’[47]

   [46] Ibid, [60].

   [47] A1, [65] and [67].

8. He makes reference to the rehabilitative courses he has completed which comprise ‘Drug and Alcohol Abuse 101’ and ‘Understanding Addictions’. Purported outcomes or benefits from such courses appear in his statement but are presented more in terms of intended outcomes from those courses as opposed to what level of rehabilitative benefit the Applicant can now be found to have experienced from them. Reference to these courses in the statement appears to be more of a ‘cut & paste’ exercise from an electronic flyer promoting or offering these courses as opposed to an actual finding or an assessment by someone else about what he/she thought the Applicant had experienced or learnt.

9. In terms of an ultimate submission, he says these things:

   ‘68. It is ultimately submitted that I have taken steps to further rehabilitate myself and I am learning everyday about managing my mental health, anxiety and past substance abuse issues.

   …

   74. I have a new found confidence. I have a high self esteem now. I am in love with the gym and healthy living. I have the tools now to recognise my triggers and firmly believe I will lead a drug free life.’[48]

   [48] Ibid [68] and [74].

10. The Applicant also gave oral evidence. During cross-examination the Applicant said that if returned to the community, he would return to the house he and Ms van Tovier were living in prior to his incarceration. His removal from the community meant that she was not able to sustain the mortgage payments without his income such that she had to place tenants in the property and find somewhere else to live. The Applicant told the Hearing that over the last four months Ms van Tovier removed the tenants and returned to live in the subject property with her father. The plan is to bring Ms van Tovier’s mother to live in the subject property to join her and her father and, if returned to the community, the Applicant.

11. I earlier referred to the two phases of the Applicant’s offending. It is clear from the Applicant’s evidence that the almost six year lull between the two offending phases saw the Applicant at first gainfully employed in legitimate activity which culminated in him owning and operating his own barber shop located near his residential property. However, illicit drug abuse got the better of the Applicant in around 2018 such that he was compelled to sell his share of the barber shop business to his business partner who remains in possession of it. If returned to the community it can be safely found that the extent of the Applicant’s experience in barbering will allow him to readily find employment in that trade and he spoke of his former business partner offering him employment as a barber if he sought it.

12. During his time removed from the community in both prison and immigration detention, the Applicant has contemplated alternate career paths:

    ‘MR KYRANIS: You mentioned earlier that you might want to do something else apart from barbering. What’s that?

    APPLICANT: ---Well, I’ve been offered work with guys that I’ve met since then. So I wouldn’t mind going and working away at the mines or there’s a waterproofing job that’s been offered to me as well, down at the Gold Coast. But later on down the track, I’d like to get into youth work as well.’[49]

    [49] Transcript, p 13, lines 25-30.

13. The Applicant was taken to a significant number of offending episodes as they are recorded in the criminal history and otherwise more fulsomely particularised in Exhibits R1 and R3 of the material. There is no requirement to embark on an examination of the Applicant’s evidence about his offending because, by and large, he did not seem to cavil with specific questions put to him in any significant way. Simply because the Applicant may have slightly cavilled with the description of an event or events or other minutiae of an episode(s) of offending should not necessarily lead to an inference by this Tribunal that he now denies it or otherwise propounds unsustainable artificiality around it.

14. There was little or nothing to suggest the Applicant was departing from his written position contained in his abovementioned statement dated 31 August 2023 wherein he clearly said ‘…I do not dispute the charges that I have faced before the courts….During the criminal proceedings I have assisted with administration of justice by entering a plea of guilty at early stage, by making full admissions and sincerely showing remorse……I accept full responsibility for my behaviour.’[50]

    [50] A1, [71], [69] and [56].

15. In terms of his drug use, the Applicant said the following during cross-examination:

    ·he first started using methylamphetamine at around age 23;[51]

    [51] Transcript, p 36, line 15.

    ·he thinks his methylamphetamine abuse became a problem for him in or around 2009 - 2010 where he started using it daily;[52]

    [52] Ibid, lines 19-26.

    ·this daily pattern of use was maintained for a period of about two years;[53]

    [53] Ibid, line 30.

    ·his most intense use of methylamphetamine was during a 10 month period during 2019 and for the abovementioned two year period during 2009 – 2010 when he used it daily;[54]

    [54] Ibid, lines 38-42.

    ·he agreed that as recently as 2022 before he went to prison he was still sporadically using methylamphetamine and that he was addicted to it at that time;[55]

    [55] Ibid, 44-47.

    ·there seem to be little contest from the Applicant when it was suggested to him that he was offending and reoffending as means of trying to get his hands on as much methylamphetamine as possible;[56]

    [56] Ibid, p 37, lines 1-7.

    ·he confirmed that the last time he used methylamphetamine was just before he went to prison in July 2022 and that he has not used any illicit drugs in immigration detention since July 2022;[57]

    [57] Ibid, lines 19-24.

    ·he described the level of his use of methylamphetamine in July 2022 not as daily use but two or three times per week;[58]

    [58] Ibid, p 38, lines 17-21.

    ·he spoke of still being in with a relationship with Ms van Tovier in 2022 although they were not living together;[59]

    ·he said they separated in 2018 and that they separated because he started using drugs again;[60]

    ·he agreed with the suggestion that he and Ms van Tovier have been together on and off for 18 years;[61] and

    ·he agreed that much of the on/off nature of their relationship was due to his difficulties with illicit drugs:

    ‘MR KYRANIS: Do you think that you separated then?

    APPLICANT: ---Well, our relationship was always under review when I’d get locked up.

    MR KYRANIS: Would she be saying things along the lines of, ‘How could you be using drugs again? I don’t want to resume this relationship with you if you continue using drugs and keep offending and going to gaol’?

    APPLICANT: ---Yes. Yes.

    MR KYRANIS: Would she say something similar along those lines each time that you went to gaol?

    APPLICANT: ---Yes.’[62]

    [59] Ibid, p 39, lines 1-2.

    [60] Ibid, lines 11-15.

    [61] Transcript, p 39, lines 20-21.

    [62] Ibid, lines 36-44.

    The evidence of Ms Kristina van Tovier, Applicant’s partner

16. Ms van Tovier’s written statement is undated and appears in the material.[63] She says they have been ‘….friends/ partners/ fiance’s [sic] / friends/ partners since 2007 ….there have been very difficult times as well as very happy times in our past.’[64] She refers to the Applicant having ‘…promised that he is on a new path and never wants to use drugs again.’

    [63] R1, p 110.

    [64] Ibid.

17. She refers to the Applicant having ‘…very strong morals…He will give someone the actual shirt off his back if someone needs it but finds it difficult to ask for or accept help’. She talks about the Applicant ‘…speaking to counsellors and support people that have helped  alot[ sic].’[65]

    [65] Ibid.

18. Ms van Tovier also gave oral evidence. She said that she has seen the Applicant go in and out of prison on about three occasions.[66] She first learnt of the Applicant’s involvement in drugs ‘Very early in, from when we met. I knew that he dabbled in drugs. I don’t think – it wasn’t an issue when we met.’[67] She confirmed they had been in an on and off relationship for about 18 years.[68] She confirmed that she has repeatedly tried to address the Applicant’s issues with illicit drugs and that despite her best efforts, he has relapsed:

    ‘MR KYRANIS: Have you had conversations with him about his drug use and needing to stop it?

    MS VAN TOVIER---Yes. All the time. Every time. And times have been really good at times. He’s stopped. And then, I couldn’t tell you what causes the – the downfall, or for him to relapse. Generally, it’s always sad and stressful situations. But he’s never had the resources that he’s had now with being in the centre. He’s never actively tried to better himself by doing courses and stuff like that to have better knowledge of how to deal with stuff now, which is what I’m hoping that he’s done.

    MR KYRANIS: In the past, when he’s been to gaol and been released, and you know, potentially other times where you’ve found out that he did a lot of drugs on the weekend, or something like that - - -?

    MS VAN TOVIER---Yes.

    MR KYRANIS: You’ve would have expressed to him that you don’t want him doing drugs, yes?

    MS VAN TOVIER: ---Yes.

    MR KYRANIS: Many times? Like, are we just talking about one or two, or just is it something over the past, you know - - -?

    MS VAN TOVIER: ---Well, many times after the – over the past 17 years. As what I’m saying, he’s stopped many times as well, but I don’t know, I just – he’s never, like I said, he’s never done courses, he’s never had the – what’s the word I’m looking for – the acknowledgement, or he hasn’t admitted in the past that he’s had an issue, and he hasn’t actively tried to get over it, …...’[69]

    [66] Transcript, p 63, lines 16-17.

    [67] Transcript, p 63, lines 19-21.

    [68] Ibid, lines 25-26.

    [69] Ibid, p 63, lines 43-47; p 64, lines 1-18.

19. There followed some questions from me about factors that have caused the Applicant to relapse back into illicit drug use:

    ‘SENIOR MEMBER: Yes. In terms of him going off the rails and offending, what do you think has been the primary causative agent of that?

    MS VAN TOVIER: ---Drugs.

    SENIOR MEMBER: Drugs?

    MS VAN TOVIER: ---Yes.

    SENIOR MEMBER: Any idea of what causes him to go back onto the drugs?

    MS VAN TOVIER: ---So he’s always had issues with confidence and self-esteem. He’s had weight issues the whole time I’ve known him, which I think is always the most contributing factor to him jumping on whatever drugs to give him energy, lose weight, whatever…..’[70]

    [70] Transcript p 66, lines 40-47; p 67, line 1.

20. I then sought to understand the extent to which the Applicant is prepared to listen to her and how the extent of his willingness to do so now speaks to the current level of his recidivist risk:

    ‘SENIOR MEMBER: Yes, and does he listen to you? Does he respect the boundaries of your relationship, or in terms of not getting back onto drugs and whatever else? Or is he just someone that will just go off on a tangent and do his own thing and there’s nothing you can do to control it?

    MS VAN TOVIER: ---No. I’m not saying that he didn’t – he listened to me, but yes, I feel as though he does listen to me. The last time we were out together was great, and yes, we’ve – we were adulting. We were, you know, working things out together, so it was really good. That was fun. So I think he does take my advice and he does listen to me, because I can be a bit bossy sometimes, but that’s only because of the past.’[71]

    [71] Ibid, p 67, lines 9 -17.

    The QCS risk of reoffending assessment – 20 March 2020

21. In March 2020, the QCS prepared its ‘Benchmark Assessment’ which was presumably intended to inform a court about whether the Applicant should be released on parole. In terms of initially noted details, this QCS Report notes the following:

    ‘Details:

    Based on Mr Loulanting's previous benchmark conducted in 2013, there has been a significant change in his substance abuse. Previously Mr Loulanting reported to drink alcohol on social occasions and only to have used cannabis as a youth.

    Since this time, Mr Loulanting reported he resorted to a downward spiral into methamphetamine (ICE) use approximately 18 months ago. He reported that he suffered a breakdown in his intimate relationship with his partner of 10 years. Following this, lead to poor decision making and associating with negative influences, met through his work.’[72]

    [72] R3, p 235.

22. In this report, the QCS conducted a risk of re-offending assessment as at 20 March 2020 which it calls the ‘RoR-PPV’. A score of 8 via this testing and the report notes that ‘(Range of Scores 1 to 20: [with] 20 being the highest risk of reoffending)’.[73] This QCS Report then provides the following assessment summary:

    [73] Ibid, p 241.

    ‘Assessment Summary:

    ORDER: PROBATION

    ROR: 8

    LEVEL OF SERVICE: STANDARD

    SUPERVISION PHASE: INTERVENTION

    SPECIAL CONDITIONS: NIL

    The benchmark assessment identified HIGH needs in the areas of employment and substance abuse.

    Of concern, Mr Loulanting change in needs since the previous benchmark conducted in 2013 indicates a significant change in substance abuse. Mr Loulanting recent commencement of ICE use and Subutex indicates this is a contributing factor towards Mr Loulanting's offending behaviour. It is recommended that at the commencement of his Order, Mr Loulanting be monitored through his engagement with AODS[74] intervention and his compliance with the opioid replacement program. Case management should focus on relapse prevention strategies and identification of pro-social support. Once this has been established, it is recommended Mr Loulanting be transitioned into the maintenance phase of supervision. Contact can include office visits, phone reports, biometric reporting and collateral checks.’[75]

    [My emphasis and underlining]

    [74] Alcohol and Other Drugs Service.

    [75] R3, pp 239-240.

    QCS – Advice to Parole Board Report, dated 22 July 2022

23. The QCS also prepared the abovementioned additional report that is contemporaneous with the Applicant’s most recent placement into criminal custody. In terms of the identified ‘Issue’, this report notes the following:

    ‘ISSUE:

    A convergence of risk factors has occurred which commenced with Mr Loulanting attending the office unscheduled on 16 June 2022, reporting the loss of multiple protective factors and resumption of engagement with antisocial peers and substance abuse. He was observed as under the influence at the time of the appointment. Since this time, Mr Loulanting's behaviours and presentation have continued to deteriorate. He has failed to implement any protective factors to mitigate his risk and has continued to engage in antisocial behaviour.

    Between 24 June 2022 and 7 July 2022, Mr Loulanting has been charged with 12 further alleged offences namely….

    Prior to the above alleged offending Mr Loulanting displayed a positive response to supervision.’

    …

    Between 12 July 2022 and 21 July 2022, multiple attempts have been made to contact Mr Loulanting to direct him in for an appointment to discuss his ability and willingness to implement risk mitigation strategies. Mr Loulanting has remained uncontactable.

    …..

    In a last effort to engage Mr Loulanting, an email was sent on 20 July 2022 with a direction to report on 22 July 2022. Mr Loulanting failed to report on 22 July 2022 in contravention of condition (d) of his Order and his whereabouts are currently unknown.

    …

    In consideration of the above, Mr Loulanting is presenting at an unacceptable risk of committing an offence and has further failed to comply with his Order.’[76]

    [My emphasis]

    [76] R3, pp 223-224.

24. This QCS Report then goes on to provide the following additional commentary with regard to the Applicant’s ‘Release Background:

    ‘RELEASE BACKGROUND

    Mr Loulanting’s index offences relate to him stealing two motor vehicles, possessing stolen property and possessing 18.88 grams of methamphetamine alongside clip seal bags. These offences were committed whilst Mr Loulanting was subject to a Probation Order.

    ….

    On 20 June 2022, Mr Loulanting attended the office unscheduled. Mr Loulanting’s behaviour was observed to be elevated and erratic during the contact with disclosures of inhaling deodorant and increased alcohol consumption.

    …

    During a phone call with Mr Loulanting on 1 July 2022, he was observed as heavily under the influence, slurring his speech, interrupting, falling asleep and drifting off topic of conversation. He was directed to attend the office later that day to discuss his ongoing offending, however, failed to attend…. Mr Loulanting was referred to engage with his General Practitioner within 48 hours to obtain a Mental Health Care Plan (MHCP) given his reported declined mental health. He called later that day claiming to have obtained his MHCP. Confirmation was received on 22 July 2022 and revealed this to be untrue in that he had not engaged with the clinic in contravention of condition (b) of his Order.

    Concurrently with his recent decline in behaviours, Mr Loulanting has repeatedly been evasive in his disclosures to the Agency on a range of topics, providing untruthful accounts as to his pro-criminal associations, actions and whereabouts.’[77] [My emphasis]

    [77] Ibid, pp 224-225.

1. This QCS Report then provides an analysis culminating in an expressed view of a level of recidivist risk the Applicant represented at the time of the Report – that is, 22 July 2022. It is worth quoting the analysis in full

   ‘ANALYSIS:

   Mr Loulanting's behaviours have continued to deteriorate since 16 June 2022. Despite the Agency attempting to support him in implementing protective factors and referrals to support, Mr Loulanting has demonstrated an unwillingness to enact behaviour change and continues to engage in antisocial behaviour, substance abuse and commit offences. Mr Loulanting’s substance abuse and engagement with antisocial peers are directly correlated to his offending. He appears undeterred by potential consequences of his behaviour and is demonstrating a disregard for both his Order and community safety.

   Mr Loulanting has a history of possessing loaded firearms. Information surrounding his possession of a knife, erratic and unprovoked violent behaviour toward strangers creates an immediate risk of harm to the community.

   It is assessed that all efforts to manage Mr Loulanting within the community have been exhausted, and he is presenting at an unacceptable risk of committing an offence at this time.’[78]

   [My emphasis and underlining]

   [78] R3, p 225.

2. Finally, this QCS Report contained the following ‘Recommend Action / Strategy’ which is also worth quoting in full:

   ‘RECOMMEND ACTION / STRATEGY

   It is respectfully recommended the Board suspend Mr Loulanting’s Order pursuant to section 208A (1)(a),(b) and (c) of the Corrective Services Act 2006. It is further respectfully recommended an Accommodation Review (AR) be completed prior to any re-release to ensure Mr Loulanting has suitable and stable accommodation available to him. It is further respectfully recommended Mr Loulanting's Order be amended to include the following special conditions should he be re-released:

   - You must reside at a residence approved by the Board or an authorised corrective services officer;

   - You must attend courses, programs, meetings and counselling at such places and times as directed by an authorised corrective services officer;

   - You must abstain from alcohol until otherwise issued a direction in relation to alcohol consumption by an authorised corrective services officer;

   - You must undertake and engage with alcohol and other drug counselling and/or programs if directed to do so. If such a direction is given, you must authorise in writing that your treating health services providers make available to an authorised corrective services officer and/or the Board, a report on your medical and/or other conditions at all reasonable times.

   - You must not possess or use any weapons within the meaning of the Weapons Act 1990, including firearms, knives and other prescribed weapons whether operable or not.’[79]

   [My emphasis and underlining]

   [79] R3, p 226.

   The evidence of Dr Gavan Palk, forensic psychologist

3. Dr Gavan Palk is a significantly experienced forensic psychologist. He interviewed the Applicant by telephone on 25 November 2023 for about 90 minutes. He also had three brief telephone conversations with the Applicant prior to the date of interview.[80] Dr Palk’s report appears in the material[81] and is dated 27 November 2023 and was thus produced eight days before the commencement of the instant Hearing. Apart from engaging with the Applicant for the production of the subject report, Dr Palk has had no prior clinical involvement with the Applicant.

   [80] A3, [1.11].

   [81] Ibid.

4. Dr Palk’s written report commences with six elements he utilised to produce a psychometric assessment of this Applicant.[82] Dr Palk made a detailed note of (1) the Applicant’s explanation and attitudes for his offending history; (2) the Applicant’s personal circumstances including his education and employment history, family and intimate relationships, health and substance use, criminal history and current situation and plans; (3) the Applicant’s vulnerability at the time of his current offence; and (4) the Applicant’s attitudes towards rehabilitation.

   [82] Ibid, [1.11].

5. Dr Palk then made an assessment of the Applicant’s likelihood of reoffending. First, in terms of the Applicant’s risk of violent offending Dr Palk’s report notes the following:

   ‘6.4 Assessments via violent offending scales {Violence Risk Appraisal Guide (VRAG), Historical, Clinical and Risk Management Violence Assessment Scheme (HCR-20)} indicate his risk future risk is in the low range if he refrains from substance use. His risk could potentially remain low if he implements the relapse prevention strategies he has leant and abstains from alcohol and illicit drug use.’[83]

   [My emphasis]

   [83] A3, [6.4].

6. Second, in terms of the Applicant’s risk of future general offending, Dr Palk opined as follows:

   ‘6.5 Risk of future general offending as assessed by the Hare Psychopathy Check List (PCL-R) which is a popular scale commonly used by forensic psychologist but not without reliability issues. Some studies regard the PCR-R [sic] as highly reliable and a validated rating scale for the assessment of psychopathy while meta-analytic studies have questioned the scales usefulness in certain situations. There are also cultural sensitivities issues but the items on the PCL-R apply across all cultures.

   6.7 Mr. Loulanting’s total score of 10 is below the average prisoner’s ranking and falls below the cut off raw score of 6.5 to be classified as a Psychopath….’[84]

   [My emphasis]

   [84] Note to reader: See generally, Transcript, p 77, lines 30-45; p 78, lines 1-9. During his oral evidence Dr Palk wanted to point out that certain words or changes had to be made to [6.7] of his report. He indicated that after 10 in the first line, the reader should insert words to the effect of ‘out of a maximum score of 40.’ Dr Palk also indicated that the number 6.5 in the second line of [6.7] should be changed to ‘30’ and he further indicated that after this number, the reader should insert words to the effect of ‘representing a percentile of 6.5.’ Further note to reader: Dr Palk’s report jumps from [6.5] to [6.7]. There is no [6.6].

7. Dr Palk’s ultimate assessment is that the Applicant’s:

   ‘….. risk of reoffending is currently low-medium as his substance dependency is remission and his risk can remain low if he continues to implement the rehabilitation strategies he has learnt and refrain from alcohol misuse and use of illicit substances when he is released into the community.’[85]

   [85] A3, p 12, [6.11].

8. In terms of a concluded opinion, Dr Palk opined as follows:

   ·the Applicant has ‘….displayed insight into his offending behaviour and accepted full responsibility for his actions’;[86]

   ·the Applicant ‘…meets the DSM-5[87] criteria for substance use disorder (cannabis and methylamphetamine) and adjustment disorder with features of anxiety and depression’;[88]

   ·the Applicant ‘…accepts his offending was serious and regrets the offending and is determined not to reoffend’;[89]

   ·the Applicant ‘….appears genuinely remorseful and is committed to not reoffending and living a pro-social life motivated by sharing a life with Katrina [sic] [Ms van Tovier] and restarting a barber’s business’;[90] and

   ·the Applicant ‘….is currently regarded as a low to medium risk of reoffending if he refrains from using illicit substance and continue to practice his relapse prevention strategies, he will remain a low risk for re-offending’.[91]

   [86] Ibid, p 14, [9.4].

   [87] Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition.

   [88] A3, p 14, [9.6].

   [89] Ibid, [9.8].

   [90] Ibid.

   [91] Ibid.

9. Dr Palk also provided oral evidence. During cross-examination Dr Palk agreed that the Applicant currently represents a low to medium risk of reoffending provided he does not return to abusing illicit drugs.[92] He agreed that a low to medium risk is a risk that is higher than a low risk but less than a medium risk.[93] Dr Palk agreed that if the Applicant relapsed into illicit drug use his risk of reoffending would become high.[94]

   [92]Transcript, p 75, line 23-25.

   [93] Ibid, lines 27-28.

   [94] Ibid, lines 36-37.

10. Dr Palk confirmed his risk assessment placed the Applicant somewhere in the middle of between low and medium recidivist risk but he attached specific conditions around that assessment:

    ‘MR KYRANIS: Somewhere in the middle between low risk and medium risk?

    DR PALK: ---Yes. I made that assessment simply because he hasn’t been tested in the community at this stage. Obviously, he’s shown periods when he can abstain, and periods, long periods, when he hasn’t offended, but he’s been in prison for some time. And if he’s got a lot of protective factors around him.’[95] [My emphasis]

    [95] Ibid, p 75, lines 30-34.

11. Dr Palk was asked whether he recalled reading the abovementioned letter of warning issued by the Respondent’s Department to the Applicant which was dated 25 June 2014 in the bundle of material that had been briefed to him by the Applicant. Dr Palk was ‘….pretty sure I read that in the G documents or somewhere.’[96] He was then asked whereabouts in his report he took this letter of warning into account in terms of any assessment of the Applicant’s recidivist risk. Dr Palk unconvincingly responded with the following:

    ‘SENIOR MEMBER: Sure. Well, is that factual scenario relevant in determining a risk as to that he’d previously been warned and reoffended after being given a warning?

    DR PALK: ---Not if you’re – not if you’ve got a drug addiction. I think any warning is meaningless until you address the underlying – the underlying issue. You know, I have people who come to me with anger management and I’m asked to give them anger management skills. And when I assess them, I find they’ve got deep underlying trauma, hatred towards their father or mother because of being sexually abused. Unless you deal with that underlying trauma, it’s a waste. You can give them all the skills in the world, but they won’t implement them because that trauma has to be dealt with. And it’s similar with a drug – a drug – a person with a drug dependency. They’ve got to not use. They’ve got not to return. It’s like, you know, saying to a drink driver, ‘Well, I’m warning you. You’ll go to jail if you drink – if you get caught drink driving again.’ I mean, they’ve got an alcohol problem. If they haven’t addressed it, they’re going to drink drive again.’[97]

    [96] Transcript, p 78, lines 46-47.

    [97] Ibid, p 79, lines 6-20.

    Findings about risk

12. To my mind, there are two polar opposites to be taken from the evidence in relation to recidivist risk. At one end, there is the QCS- Advice to Parole Board Report of 22 July 2022. At the other end of the spectrum there is the evidence of the Applicant and that of Dr Palk. Such is the gulf between the two polar opposites that I am not able to reconcile them. Based on this premise, I therefore make the following findings about risk:

    ·the Applicant’s evidence, both written and oral is confidently stated and presented but otherwise unconvincing and vacuous. His past difficulties with illicit drugs have caused him to very seriously offend and to otherwise very seriously ignore the requirement to confine his conduct within lawful parameters of a person suitable for participation in the Australian community. His past illicit drug use has isolated him from a past business partner and from his domestic partner across a period of 18 years. Neither of his new found two bases of confidence – physical confidence and mental / emotional confidence – have been tested in the community as reliable means of him maintaining the critically necessary vigilance against a relapse into illicit drug use;

    ·likewise, his evidence around future employment prospects or activities appeared vague and fanciful. He is and has been a barber for most of his working life, either as an employee or as a proprietor of a barber shop business. He unconvincingly spoke of recent contacts he had made with people in either prison or immigration detention that could put him in touch with other people on the outside who could, says the Applicant, readily place him into waterproofing job or a job as a fly-in-fly-out worker in the mining industry. This evidence of non-barbering employment is both vague and unconvincing and should be rejected;

    ·similarly unconvincing and vague is the Applicant’s evidence around rehabilitation. His involvement with illicit substances is a long and storied one which first commenced when he was 23. He is now 45. There is a reference to certain courses undertaken but little or no evidence around how those courses have managed to cause the Applicant to get past predispositive factors behind his offending under any sort of remedial management and control. The ’cut and paste’ basis of how those courses are referenced in the Applicant’s statement does not serve to convince me that he has taken anything all that positive from those courses;

    ·the evidence of Kristina van Tovier, although well-intended, was ultimately of little benefit in terms of informing this Tribunal about the Applicant’s level of recidivist risk. She has been the Applicant’s loyal domestic partner – albeit in an ‘on again- off again’ relationship for 18 years. If the Applicant needed a reliable ‘rock’ on which to turn his life around and on whom to rely, Ms van Tovier has been that person. But the Applicant has not accepted Ms van Tovier as that person. She was honest enough in her evidence to tell the Tribunal her best understanding of the extent of the Applicant’s involvement with illicit drugs and how that has severely impacted their relationship;

    ·the sad theme of Ms van Tovier’s evidence is that although she may have implored the Applicant during their relationship to give up illicit drug abuse, he has completely ignored her to the point where he physically distanced himself from her by going to live on the Gold Coast with her remaining in Brisbane and left to struggle to support herself, including the mortgage on their domestic residence. Try as she has, Ms van Tovier has not succeeded in curbing the Applicant’s past relapses into illicit drug abuse. There is little to suggest she will be able to do so in future;

    ·the evidence of Dr Palk, is well intended and no doubt written from considerable experience as a practitioner in his field. Critically, Dr Palk does not have any level of historical clinical involvement with the Applicant. He consulted with the Applicant via telephone and produced a report barely a week or two before the instant Hearing. This is not, at all, to criticise Dr Palk who did what he was instructed to do in the time available to him. In my respectful view, he did so in his thoroughly professional and expert way this Tribunal has come to expect of him;

    ·in the time available to him, Dr Palk applied the necessary psychometric tests to assess, inter alia, the Applicant’s risk of violent reoffending and his risk of future general offending. He reached a finding that the Applicant currently represents a low – medium recidivist risk. He heavily conditioned that finding on the basis that (1) the Applicant’s capacity to abstain from illicit drugs has not been tested in the community and (2) on the basis that he keeps a lot of protective factors around him.[98] These two conditions, as will be seen, are fulsomely demolished in the QCS – Advice to Parole Board Report of June 2022. Put simply, that Report confirms the Applicant has not been able to abstain from relapsing into illicit drug abuse when returned to the community. It also confirms that whatever protective factors have been around the Applicant have not prevented him from relapsing and offending;

    ·the QCS Reports, the first of the QCS reports (dating from March 2020) records a ‘RoR-PPV’ result of 8 out of a maximum of 20 with 20 being the highest risk of reoffending. However, that assessment came with specific matters ‘of concern’ to the QCS at the time of that assessment. Respective recommendations have been made about the Applicant (1) being the subject of constant monitoring through an engagements with Alcohol and Other Drugs intervention and compliance with an opioid replacement program; and (2) being the subject of focussed case management on relapse prevention strategies and pro-social support;

    ·the second of the QCS reports (dating from July 2022) is way more problematic for the Applicant. The QCS is in no doubt that the Applicant represents an unacceptable risk of committing an offence and that he had failed to comply with then extant orders. This report found him evasive in his disclosures about a range of topics and to be otherwise providing untruthful accounts about pro-criminal associations. The Report said the Applicant appeared undeterred by potential consequences of his behaviour and that he was demonstrating a disregard for the then – extant parole order and community safety. The Report’s analysis concludes with a finding that ‘all efforts to manage [the Applicant] within the community have been exhausted and he is presenting at an unacceptable risk of committing an offence at this time.’ ’This time’ was July 2022. There is little in the evidence to displace a finding that things are significantly different now;

    ·taken in totality, the QCS Reports must displace the evidence of Dr Palk. Dr Palk has no longitudinal clinical involvement with the Applicant. The QCS does – by virtue of its statutorily mandated involvement in providing necessary assessments to authorities charged with responsibility for releasing the Applicant into the community pursuant to one non-custodial order or another. To repeat, the sheer gulf between what the QCS said and found – very explicitly and clearly – in July 2022 is not capable of being traversed by this Applicant at this Hearing in terms of convincing this Tribunal that his level of recidivist risk is even marginally better than what QCS found it to be in July 2022.

    [98] See generally Transcript, p 75, lines 30-34.

    Assessment of recidivist risk

13. I have had regard to the totality of the evidence around recidivist risk. In particular, I take into account (1) Dr Palk’s assessment of a low to medium risk strongly conditioned as it is by an expectation the Applicant will maintain an abstinence from alcohol and illicit drug abuse and ‘if [in the community] he’s got a lot protective factors around him’; (2) the report from QCS from July 2022 noting the Applicant’s poor history of managing his substance abuse issues while in the community leading the QCS to report that ‘all efforts to manage [the Applicant] within the community have been exhausted’ such that as at July 2022, ‘he is presenting at an unacceptable risk of committing an offence’; and (3) that no ‘protective factors’ have successfully regulated his propensity of relapsing into a pattern of abusing either or both illicit drugs and alcohol. Despite her almost infinite patience, Ms van Tovier could do nothing to prevent relapses. Not even the responsibility of owning and operating his own barber shop business was enough to call the Applicant to his senses.

14. I have arrived at a finding that the Applicant represents a low to medium recidivist risk but that his previous pattern of relapsing into substance abuse renders him an unacceptable risk of committing another offence if returned to the community.

    Sub-paragraph 8.1.2(2)(c)

15. The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a  
    non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.

    Conclusion of Primary Consideration 1:

16. With reference to the weight attributable to this Primary Consideration 1:

    (a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been very serious;

    (b)I have found that recommission of all or part of the Applicant’s offending could result in harms suffered in the Australian community in the realms of physical harm, psychological harm, measurably material harm and even catastrophic harm;

    (c)I have found the Applicant represents a low to medium recidivist risk but that his past pattern of relapses renders him an unacceptable risk of committing another offence if returned to the community.

1. Accordingly, I am of the view (and I find) that based on my analysis of the evidence around subparagraphs 8.3(4)(a)(i), (ii) and (iii) of the Direction, a strong level of weight is allocable to this paragraph 8.3(4) in favour of the Applicant.

   Conclusion: Primary Consideration 3

2. I have referred to the four relevant components of this Primary Consideration 3. I am of the view–after having analysed the evidence relevant to each of those four components – that the totality of the evidence points to a strong level of weight in favour of a finding that this Tribunal should restore the Applicant’s Visa status to remain here.

   PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

3. This primary consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[135] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.

   [135] Paragraphs 8.4(1) and 8.4(2) of the Direction.

4. In assessing the best interests of each child/ren, a decision-maker is required to take into account:[136]

   [136] Paragraph 8.4(4) of the Direction.

   (a)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);

   (b)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;

   (c)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;

   (d)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;

   (e)whether there are other persons who already fulfil a parental role in relation to the child;

   (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

   (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

   Identification of relevant minor child/ren

5. As is clear from the evidence, the Applicant does not have any biological or stepchildren in Australia. In an endeavour to accurately identify all relevant children for present purposes, I again refer to the abovementioned ‘master list’.[137] Having regard to this master list and adopting a process of elimination in an effort to find any relevant minor children for present purposes, I have arrived at the following list:

   ·the children of Ms van Tovier’s siblings. We know Ms van Tovier is the youngest of five children and the only one of those five children not to have any children of her own.[138] We do not know how many children her four siblings have had and we also do not know whether any of those children are under the age of 18 years;

   ·there is reference to a ‘Luke’ who is the son of the Applicant’s uncle, Rudolph Loulanting. We know that Rudolph lives on the Gold Coast and that Luke lives in Brisbane. We do not know the age of Luke and whether he is under the age of 18 years;

   ·we know that the Applicant’s step-bother Ben Tauevihi has four children and that three of them are over the age of 18 years and that only one of them, Child T, is under the age of 18. It appears Child T is aged ‘about 10’.[139] The further issue with this particular child for present purposes is that the Applicant made no reference to him as an ‘Other Child’ in his PCF and only introduced him as a factor for the instant proceeding.[140]

   [137] See [102] of these Reasons.

   [138] See transcript, p 63, lines 36-38.

   [139] Ibid, p 17, lines 27-29.

   [140] Ibid, p 17, lines 31-43.

6. Given the scant and quite incomplete state of the evidence around any minor child/ren, I will apply the factors appearing at sub-paragraph 8.3(4) of the Direction to the totality of the children on a collective basis.

   Application of factors at 8.4(4) of the Direction

7. Sub-paragraph (a): we do not know the nature and duration of the relationship between the Applicant and any of the abovementioned children. He refers to having a ‘close’ relationship with some of them but we do not know whether any such relationship has been parental. There have clearly been long period of absence between him and those children. Put at its highest, this sub-paragraph is only moderately militative in favour of a finding that it is in the abovementioned children’s best interests for the Applicant to remain in Australia.

8. Sub-paragraph (b):

   we do not know the extent to which the Applicant is likely to play any sort of positive parental role in the future of the abovementioned children. Apart from

   
   

   Child T who is ‘about 10’, we do not know the ages of any of the other children. Therefore, we cannot know what sort of cumulative parenting time there is available until any / all of these children attain the age of 18 years. Put at its highest, this sub-paragraph is only moderately militative in favour of a finding that it is in the abovementioned children’s best interests for the Applicant to remain in Australia.

9. Sub-paragraph (c): we do not know the impact of the Applicant’s prior conduct on any of the possibly relevant children, nor do we have any information about how any future conduct by the Applicant will adversely affect any or all of them. This paragraph should be put to one side and rendered neutral for present purposes.

10. Sub-paragraph (d): while we do not have any direct evidence on the likely effect any or all of the children would experience as a result of a permanent physical separation from the Applicant, it is quite likely they will be able to maintain some type of telephonic or electronic connection with the Applicant in the event of his removal to New Zealand. Given the incomplete state of the evidence, I think this sub-paragraph should be put to one side and rendered neutral for present purposes.

11. Sub-paragraph (e): there is nothing to cavil with the suggestion and the finding that other persons already fulfill a parental role in relation to these children. Again, given the incomplete state of the evidence, I think this sub-paragraph should be put to one side and rendered neutral for present purposes.

12. Sub-paragraph (f):  we do not know the views of any of the children and the safest course is to put this sub-paragraph to one side and render it neutral for present purposes.

13. Sub-paragraphs (g) and (h): the material contains no evidence referrable to either of these sub-paragraphs both of which should be put to one side and rendered neutral for present purposes.

    Findings about relevant minor child/ren

14. As mentioned, the evidence around any relevant minor children is scant and incomplete. It appears the Applicant has played a ‘beloved uncle’ or ‘mentor’ – type role in the lives of the minor children to which he now refers. I am hard-pressed to be convinced that the interests of any / all the relevant children for present purposes would be adversely impacted by a removal of the Applicant to New Zealand.

    Conclusion: Primary Consideration 4

15. I have sought to assess and allocate whatever weight can be found by reference to each of the relevant sub-paragraphs at 8.3(4) of the Direction. Having regard to the cumulative weight I have allocated to the best interests of the relevant minor children pursuant to the relevant sub-paragraphs of 8.4(4) of the Direction, I am led to a finding that this Primary Consideration 4 must be found to be of very moderate weight in favour of revocation of the mandatory cancellation of the Applicant’s Visa.

    PRIMARY CONSIDERATION 5:  EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

16. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[141] The Direction further explains:

    ‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[142]

    [141] Paragraph 8.5(3) of the Direction.

    [142] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

17. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

    1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

18. This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by a significant number of breaches of the Australian criminal law and its laws relating to the operation of a motor vehicle on its carriageways. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.

19. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[143]

    (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.

    [143] Paragraph 8.5(2) of the Direction.

20. I have earlier found that the Applicant has committed 11 offences that engage the operative effect of the abovementioned sub-paragraph (d) by virtue of his convictions on

    
    

    19 August 2013, 19 March 2020 and 6 October 2022 for ‘contravene direction or requirement (three convictions)’ and ‘contravene police banning notice (eight convictions)’. This offending constitutes the commission of crimes against government representatives or officials in the performance of their duties. The commission of these offences means the Australian community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.

21. The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:

    (a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;

    (b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[144]

    (c)Australia will generally afford a higher level of tolerance towards 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;[145]

    (d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[146]

    (e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen;[147] and

    (f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[148]

    [144] Paragraph 5.2(4) of the Direction.

    [145] Paragraph 5.2(5) of the Direction.

    [146] Paragraph 5.2(5) of the Direction.

    [147] Paragraph 5.2(6) of the Direction.

    [148] Paragraph 5.2(6) of the Direction.

22. In relation to sub-paragraph (a) of the immediately preceding paragraph [138], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on
    

    [149]R1, pp 64-72.

    [150] Regulation 444.511 of the Migration Regulations 1994 (Cth).

    [151] Walker v Minister of Home Affairs [2020] FCA 909 at [29].

    20 October 2022.[149] This Visa permits a citizen of New Zealand to remain in Australia indefinitely.[150] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the Visa held by the Applicant cannot be classified as a limited stay visa.[151] Therefore this sub-paragraph (a) is not applicable to the Applicant.

23. In relation to sub-paragraph (b) of the abovementioned paragraph [138], the Applicant has resided in Australia from 2003 when he was 25 years old. He is currently aged 45 years. He has a solid work history in Australia. He has fathered no biological children in Australia. He has no stepchild in Australia but does seem to have connections to minor children in Australia. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Direction.

24. In relation to sub-paragraph (c) of the abovementioned paragraph [138], I repeat that the Applicant resided in Australia since 2003 when he was 25. He is currently 45 years of age. He has spent 44 percent of his life in this country taking into account his numerous arrivals and departures. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.

25. In relation to sub-paragraph (d) of the abovementioned paragraph [138] I am of the view that the length of time the Applicant has spent here facilitates a slight raising of the community’s level of tolerance for his offending. This finding cannot be augmented due to him not having spent his formative years in this country.

26. In relation to sub-paragraph (e) of the abovementioned paragraph [138], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant recommitting his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the nature and extent of the Applicant’s offending and the harm resulting from it thus far has been of such a significant and serious magnitude as to dispel any applicable countervailing considerations.

27. In relation to sub-paragraph (f) of the abovementioned paragraph [138], I have found that at least part of the Applicant’s offending is captured by sub-paragraph 8.5(2)(d) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.

28. Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [138] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending, this Primary Consideration 5 compels a finding that the community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa. I so find.

    Conclusion: Primary Consideration 5

29. Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal not exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.

    OTHER CONSIDERATIONS

    Other Considerations (a): Legal consequences of the decision; (c): Impact on victims and (d): Impact on Australian business interests

30. With specific reference to Other Consideration (a), it is safe to find the Applicant makes no claim about being owed non-refoulement obligations in the event this decision compels him to return to New Zealand. To whatever extent he may contend that a legal consequence of this decision may cause him to become the subject of indefinite detention, it can also be safely found he is not a person covered by a protection finding. Consequently, were this Tribunal to affirm the Decision Under Review, the Applicant would be liable to removal from Australia as soon as reasonably practical.

31. With reference to these three Other Considerations (a), (c) and (d), I am of the view that the totality of the evidence before the Tribunal does not otherwise compel ventilation or analysis for the purposes of these Reasons. I will put these three Other Considerations to one side and allocate neutral weight to each of them.

    Other Consideration (b): Extent of impediments if removed

    The Applicant’s evidence

32. In his written statement dated 31 October 2023, the Applicant says:

    ‘61. I understand if I am returned to New Zealand, securing lawful employment will be impossible because I will have to disclose and explain my deportation on the basis of being an unacceptable risk of harm. No employer will want to employ me. This alone is a potentially insurmountable hardship I would be forced to face.

    62. I will suffer significantly if I was prohibited from remaining in Australia.

    ….

    72. If removal takes place, my partner and family will not be able to draw direct support from me. I fear I will sink into a state of hopelessness, forcefully removed from my partner, the love of my life.

    …

    79. I know I have had chances in the past to set my life on the correct path, I humbly ask Australia to consider the lifelong impact me being deported to New Zealand would have on me and my family.’[152]

    [152] A1, [61] – [62]; [72] and [79].

1. Based upon what the Applicant would have told him, Dr Palk’s written report notes the following about impacts and impediments the Applicant would experience if returned to New Zealand:

   ‘8.1 The main negative impact of a visa cancellation is that Mr. Loulanting will be deported and denied an opportunity to have a meaningful relationship with his partner, half-sister uncles, aunts and cousins living in Australia.

   8.2 Mr. Loulanting has lived in Australia since the age of 25 years and regards Australia as his home. He has some contact with his grandparents who reside in NZ but has little other connection to NZ, apart from contact with his parents. He does not regard himself as being close to his parents.

   8.3 Mr. Loulanting’s visa cancellation and deportation will have a substantive detrimental impact on him and deny him opportunities to have meaningful relationships with his partner, partner’s family and extended family who are in the best position to support him with his rehabilitation.

   ….

   9.2 If Mr. Loulanting is deported, he will face practical, financial, and emotional hardship as he has not resided in NZ since he was aged 25 years, apart from brief visits. He will be separated from his partner who was born in Australia and will have to remain in Australia to care for her elderly parents.’[153]

   [153] A3, [8.1] - [8.3] and [9.2].

2. During cross-examination, the Applicant agreed he completed his primary and secondary schooling in New Zealand. He also agreed that he completed a three year barbering apprenticeship in New Zealand and that he actually worked as a barber in New Zealand after completing his apprenticeship. He also agreed that he was born in New Zealand and lived in that country until he was 25 and that he settled in Australia on a permanent basis in 2003. He also agreed with the suggestion he has lived the majority of his life in New Zealand.[154]

   [154] See generally Transcript, p 10, lines 1-28.

3. He was asked whether he had made any plans about where he would reside in New Zealand if removed to that country as a result of an adverse outcome in this matter. He responded in these terms:

   ‘MR KYRANIS: Okay. If you had to return – if you aren’t successful in this matter and you need to return to New Zealand, have you given some thought to whereabouts you’d return to?

   APPLICANT: ---Where I’d live?

   MR KYRANIS: Yes?

   APPLICANT: ---I don’t know where I would live. There’s – I don’t know where I’d live, no. My grandmother’s in the aged care home. My grandfather, he’s on the aged care pension, so he can’t have anyone live with him. There is my mum at the top of New Zealand, but like I said, I’m not that close with her, but I’d still probably visit her, but there’s just no opportunities for work up the top of the New Zealand there. No, I suppose, if I had to go back to New Zealand, I’d be making the most of those 501 services that they provide over there. I did have an auntie that I talked to and asked her if I could possibly stay with her, but she’s just said she’s got too much on and it’s not an option, to make the most of those 501 services.

   MR KYRANIS: So is it the case that your plan would be to make contact with your family and try, and at least in the short-term, find somewhere to live with one of the family members?

   APPLICANT: ---Well, that’s what I thought I could do with my auntie, but - - -

   MR KYRANIS: Because it appears like you’ve got quite a lot of family and they do seem to be spread about around New Zealand, but - - -?

   APPLICANT: ---They do.’[155]

   [155] Transcript, p 16, lines 6-27.

4. A similar question followed about finding remunerative employment if removed to New Zealand. It seems more likely than not that the Applicant would be able to find employment in New Zealand as a barber:

   ‘MR KYRANIS: What about a job? I’ve read in your statement that you don’t think you’d be able to be employed as a – employed in New Zealand. Do you still think that’s the case?

   APPLICANT: ---No, I’ll probably be able to find work as a barber, but like I said, I might get into something else. But I’ve just heard it’s hard to look for work over there when you’re – when you’re coming back as a 501.

   MR KYRANIS: Yes. So you think you’d be able to find a job as a barber, but - - -?

   APPLICANT: ---I probably would be able to if I had to, yes.

   MR KYRANIS: Because you’ve worked there, you did your apprenticeship in New Zealand, you have worked in New Zealand as a barber, you’ve worked in Australia, you’ve set up a business as a barber in Australia. It seems like you’d be quite experienced and it seems you would be able to find - - -?

   APPLICANT: ---I admit I’m a good barber, yes, but it’s just a big struggle over there in getting anything going, and barbering, like I said, is probably a last resort as what I’d want to go to, but that’s probably what I’d have to go to. But yes, at the end of the day, I’d be able to be a barber.’[156]

   [156] Ibid, p 16, lines 29-45.

   Factors to be taken into account

5. 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.

6. Paragraph 9.2(1)(a): the Applicant is 45 years of age and in his PCF he ticked the ‘No’ box in response to the question Do you have any medical or diagnosed medical or psychological conditions.[157] The PCF contains no mention of any medication he was taking and it was also silent about whether he was under the care if any doctor / health professional/ counsellor for any claimed malady.[158] In terms of his physical robustness, I have earlier referred to the Applicant’s new – found ‘…love for exercise and fitness. I do regular training in the gym and now have healthy eating habits.’[159] He mentioned this to Dr Palk who noted: ‘He says he now loves exercise and keeps fit and healthy and had a daily routine.’[160]

   [157] R1, p 94.

   [158] Ibid.

   [159] A1,[47].

   [160] A3, p 10, [3.31].

7. In terms of his mental health, the Applicant readily acknowledges ‘While poor mental health has been a feature my offending, I have taken the correct steps to resolve my mental health issues including tackling my illegal substance abuse and current situation.’[161] He talks about ‘…working hard while in prison and detention to rehabilitate myself and turn my life around’.[162]

   [161] A1, [44].

   [162] Ibid, [45].

8. It will be recalled Dr Palk opined the Applicant ‘…meets the DSM-5 Criteria for substance use disorder (cannabis and methylamphetamine) and adjustment disorder with features of anxiety and depression.’[163] It will also be recalled Dr Palk noted the Applicant ‘….has submitted to rehabilitation treatment and continues to participate in drug recovery programs.’[164] Dr Palk was asked about this diagnosis in cross-examination. In his response, Dr Palk spoke about the type of rehabilitative engagement the diagnosis would require of the Applicant upon a return to the community:

   ‘MR KYRANIS: At paragraph – if I can just go to this paragraph – 9.6 of your report, you confirm that Mr Loulanting meets the DSM-5 criteria for a substance use disorder for cannabis and methylamphetamine and an adjustment disorder with features of anxiety and depression. Noting that diagnosis and that finding, how critical do you think it is that Mr Loulanting maintains a consistent level of engagement with rehabilitation if returned to the community?

   DR PALK: ---Extremely critical.

   MR KYRANIS: Extremely critical?

   DR PALK: ---Yes. That’s the point I’m making. I think he’d be very foolish not to join NA, and I suggested that to him, or a place like Drug Arm or to connect with – to see his GP and get a mental health care plan to see a psychiatrist or a – so a psychologist. There are things that he can do that cost him nothing. Well, they cost him time, and they also might assure his partner that he’s actually doing something. And not only that, he’s – will be enhancing some of his skills in improving his ability to manage his anxiety and depression.’[165]

   [163] A3, p 14, [9.6].

   [164] Ibid.

   [165] Transcript, p 88, lines 44-47; p 89, lines 1-12.

9. I am not persuaded the Applicant’s age and state of physical health can be found to be impediments for present purposes. In terms of his age, the Applicant is in his early middle age and in the prime of his life. He has no physical health issues. Dr Palk has outlined the Applicant’s mental health issues. It is not an unreasonable stretch of the evidence to suggest (and find) that the treatment modalities suggested by Dr Palk will be available to the Applicant in New Zealand if not to an identical level, then to a substantially similar level. More broadly, the Applicant will have available to him the same level of publicly accessible healthcare that can be accessed by other citizens of New Zealand.

10. To whatever extent there may be a difference in the level of such publicly mental healthcare between Australia and New Zealand, then any such difference would, to my mind, cause this sub-paragraph 9.2(1)(a) to militate in favour of allocation of a moderate level of weight to this Other Consideration (b).

11. Paragraph 9.2(1)(b): there is little or nothing in the evidence about any substantial language or cultural barriers impeding the Applicant’s re-settlement in New Zealand. He has made a number of return trips to New Zealand since arriving and settling here in 2003. In 2017, he lived in New Zealand for four and half months. He spent the first 25 years of his life in New Zealand where he completed his primary schooling, his secondary schooling and his three year barbering apprenticeship. He also began his working career as a barber in New Zealand.

12. This Tribunal (differently constituted) has previously noted: ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.’[166]

    [166] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].

13. Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and / or economic support available to the Applicant in New Zealand. In terms of social support, the Applicant agreed he has family members in New Zealand including his mother, father, grandparents and sister. He did not appear to cavil with the suggestion he would be able to find a job as a barber in New Zealand. He cautiously spoke of making contact with an aunt in New Zealand in terms of securing lodgings for at least the short term.

14. To the extent the Applicant may require either or both medical and / or social support upon a return to New Zealand, he will, as a citizen of that country, be able to access the same level of publicly available healthcare and government social security – type benefits as would be available to other citizens of that country. These social, medical and economic support factors can only be found to, at best, cause this particular sub-paragraph 9.2(1)(c) to militate in favour of the allocation of a moderate level of weight to this
    Other Consideration (b).

    Findings about impediments

15. Given the respective moderate weights I have allocated to the sub-paragraphs (a) and (c) of paragraph 9.2(1) of the Direction, I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.

    Findings: Other Considerations

16. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

    (a)legal consequences of the decision: is of neutral weight;

    (b)extent of impediments if removed: is of moderate weight in favour of revocation;

    (c)impact on victims: is of neutral weight;

    (d)impact on Australian business interests: is of neutral weight.

    CONCLUSION

17. Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.

18. In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:

    ·Primary Consideration 1: carries a very heavy weight in favour of affirming the Decision Under Review;

    ·Primary Consideration 2: is of neutral weight;

    ·Primary Consideration 3: is of a strong weight in favour of setting aside the Decision Under Review;

    ·Primary Consideration 4: is of very moderate weight in favour of setting aside the Decision Under Review;

    ·Primary Consideration 5: carries a heavy weight in favour of affirming the Decision Under Review;

19. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 1 and 5 are sufficient to outweigh the combined weights I have allocated to Primary Considerations 3 and 4 and Other Consideration (b).

20. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.

    DECISION

21. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), this Tribunal affirms the decision made on 25 September 2023 by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
    

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..................[SGD]................

Associate

Dated: 22 December 2023

Dates of hearing:	5 and 6 December 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Mr Jake Kyranis (Special Counsel)
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
RESPONDENT SUBMISSIONS
R1	Section 501G documents	Various	9 October 2023
R2	Respondent’s Statement of Facts, Issues and Contentions	10 November 2023	10 November 2023
R3	Respondent’s Tender Bundle	Various	10 November 2023
APPLICANT SUBMISSIONS
A1	Applicant’s signed statement	31 October 2023	31 October 2023
A2	Applicant’s Final Evidence Bundle	Various	27 November 2023
A3	Expert Report by Dr Gavan Palk	27 November 2023	27 November 2023
A4	Bundle of rehabilitation courses	Various	27 November 2023