Mahu and Minister for Immigration and Border Protection (Migration)

[2018] AATA 161

Mahu and Minister for Immigration and Border Protection (Migration) [2018] AATA 161 (2 February 2018)

Division:GENERAL DIVISION

File Number:           2017/6856

Re:Ramon Howard John Mahu

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President S Boyle

Date:2 February 2018

Place:Perth

The Tribunal sets aside the decision under review and substitutes the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958(Cth) be revoked.   

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

Deputy President S Boyle

Catchwords

MIGRATION – decision to revoke mandatory cancellation – where applicant is New Zealand citizen – where applicant has substantial criminal record – primary considerations weigh in favour of revoking cancellation – risk of reoffending – bests interests of minor children – expectations of the Australian community – other considerations – decision under review is set aside and substituted

Legislation

Acts Interpretation Act 1901 (Cth) – s 36(2)

Migration Act 1958 (Cth) – s 499 – s 500 - s 500(6B) – s 501(6) – s 501(7) - s501CA – s 501CA(3) – s 501(3A) – s 501CA(4)

Cases

Do v Minister for Immigration and Border Protection [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
KDSP v Minister for Immigration and Border Protection [2017] AATA 2169
Labi v Minister for Immigration and Border Protection [2016] AATA 316
Rabino v Minister for Immigration and Border Protection [2016] AATA 999
Re Sharam v Minister for Immigration and Border Protection [2015] AATA 608
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583

Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

Secondary Materials

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paragraphs 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.2, 13.3, 14, 14.2 and 14.5

REASONS FOR DECISION

Depty President S Boyle

2 February 2018

THE APPLICATION

1. This is an application for the review of a decision of the delegate of the Respondent (the Minister) made under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) on 30 October 2017 not to revoke the cancellation of the Applicant’s visa.

2. The application is made under s 500(1)(ba) of the Act.

3. The Applicant lodged an application for review of the delegate’s decision with the Tribunal on Monday 20 November 2017 (G1). Section 500(6B) of the Act requires applications for review of such decisions to be lodged within 9 days after the day on which the applicant was notified of the decision.

4. The Applicant was notified of the decision on 10 November 2017 (G42). The ninth day after that date was Sunday 19 November 2017. Pursuant to s 36(2) of the Acts Interpretation Act 1901 (Cth), the Applicant was entitled to lodge his application for review with the Tribunal on the next business day, being Monday 20 November 2017.

5. The Tribunal therefore finds that it has jurisdiction to review the delegate’s decision.

6. The application was heard by the Tribunal on 24 January 2018. The Applicant was represented by Mr Blades, instructed by Putt Legal, and the Minister was represented by Mr Burgess of Sparke Helmore Lawyers. 

7. The Applicant gave evidence and was cross-examined by the Minister’s counsel. The Applicant’s partner, Ms Silvestro, also gave evidence and was cross-examined.

8. In addition to the oral evidence given at the hearing the Tribunal had before it the following documents:

   ·Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) (Exhibit A1);

   ·Bundle of documents tendered by the Applicant comprising: 10 statutory declarations from the Applicant’s family members including,  Ms Silvestro, Ms Silvestro’s children, friends and prospective employer; letters from family members; prison records and New Zealand army records (Exhibit A2);

   ·G documents comprising 238 pages (Exhibit R1);

   ·The Minister’s Statement of Facts, Issues and Contentions (Minister’s SFIC) (Exhibit R2); and

   ·WA Police records produced under summons (Exhibit R3).

   BACKGROUND

9. The Applicant is a 32 year old citizen of New Zealand (born July 1985). He first arrived in Australia with his family in 1997. He last entered Australia on 5 April 2016 as the holder of a special category (temporary) (class TY subclass 444) visa (the visa) (Exhibit R1, G40).

10. At the time of his first entry in 1997 the Applicant was 11 years old. When the Applicant was 16 his father, who had been in the New Zealand army, died in a diving accident while working overseas.

11. After his father’s death, the Applicant and his family returned to New Zealand, remaining there for two years before returning to Western Australia. At the age of around 17 the Applicant joined the New Zealand army.

12. The Applicant spent around 10 years in the army (enlisted 12 March 2003, discharged 8 December 2012) during which time he successfully undertook an apprenticeship in heavy automotive engineering. He also successfully undertook several military related driver courses. The Applicant served in Afghanistan (Exhibit A2, pages 99-104) and was also deployed to Darwin.

13. While serving in the army the Applicant was in a relationship with a woman for about 5 years. Two children resulted from that relationship. The children and the Applicant’s former partner live in New Zealand.

14. Since moving back to Australia to live in March 2014 (Department movement details G40) the Applicant has been employed up to the time of his arrest in November 2016, firstly with Linfox, then with Toll Ipec, as a heavy diesel technician. The Applicant then worked for Roadwest in January and February 2017 when he was released on bail (Exhibit R1, G22 at page 98 and Exhibit A2 at page 2, paragraph 17).[1]

    [1] The Tribunal notes that the Applicant refers to his employment during January and February 2017 as Roadwest or Lombardi interchangeably.

    Offending history

15. The Applicant’s National Police Certificate dated 10 July 2017 (Exhibit R1, G16, pages 51-52) reveals the following:

    (a)On 20 October 2014, he was found guilty of disorderly behaviour in public for which he was fined $600 (date of offence: 20 September 2014 (G7, page 19));

    (b)On 10 February 2017, he was found guilty of possession of a prohibited drug with intent to sell or supply (methylamphetamine) for which he was sentenced to 15 months imprisonment from 11 December 2016 (date of offence: 16 June 2016 (G7, page 19));

    (c)On 13 February 2017, he was found guilty of:

    (i)possession of prohibited drugs with intent to sell or supply for which he was fined $500 (date of offence: 16 June 2016 (G7, page 18));

    (ii)possession of prohibited drugs with intent to sell or supply for which he was fined $1,500 (date of offence: 16 June 2016 (G7, page 18));

    (iii)escaping from lawful custody for which he was fined $500 (date of offence: 16 June 2016 (G7,18));

    (iv)unlawfully assault and thereby did bodily harm with circumstances of aggravation for which he was sentenced to 2 months imprisonment concurrent from 13 February 2017 (date of offence: 1 November 2016 (G7, page 18));

    (v)criminal damage or destruction of property for which he was fined $500 (date of offence: 1 November 2016 (G7, page 18));

    (d)On 29 March 2017, he was found guilty of possession of a prohibited drug with intent to sell or supply (mdma) for which he was sentenced to 3 months imprisonment concurrent from 29 March 2017 (date of offence: 16 June 2016 (G7, page 18)).

16. The Applicant’s New Zealand traffic conviction history (Exhibit R1, G39, page 202) shows traffic offences committed in 2004 (one offence), 2011 (one offence) and 2012 (three offences). For these, the Applicant received various fines, driving disqualifications and a community work order. No terms of imprisonment were imposed.

    Mandatory visa cancellation and review application

17. On 23 March 2017, the Minister’s department (Department) issued a notice to the Applicant that his visa had been cancelled under s 501(3A) of the Act (Exhibit R1, G4, page 10). On 24 March 2017, the Applicant made representations seeking revocation of the mandatory cancellation (Exhibit R1, G21, pages 72-76).

18. On 26 October 2017, the delegate decided under s 501CA(4) of the Act not to revoke the mandatory cancellation (Exhibit R1, G15, pages 35-50). On 20 November 2017 the Applicant made this application to the Tribunal (Exhibit R1, G1, pages 1-8).

19. The Applicant is presently serving the sentences for the offences identified above at Acacia Prison. His present expected date of release from prison is 10 March 2018 (Exhibit R1, G36, page 192).

    ISSUE FOR DETERMINATION

20. As it is not disputed that the Applicant does not pass the character test (Exhibit A1, paragraph 27) the only issue for determination by the Tribunal is whether it should exercise the power in s 501CA(4) to revoke the mandatory cancellation of the Applicant’s visa.

21. The sole issue before the Tribunal, standing in the shoes of the Minister, is whether under section 501CA(4)(b)(ii) of the Act, “... there is another reason why the original decision should be revoked”. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ elaborated on how to approach this discretion (at 345):

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked...

22. The existence or otherwise of “another reason” should be established on the balance of probabilities.

    LEGISLATIVE FRAMEWORK

23. Section 501(3A) of the Act is a mandatory cancellation power, requiring that:

    (3A) The Minister must cancel a visa that has been granted to a person if:
    
    (a) the Minister is satisfied that the person does not pass the character test because of the operation of:
    
    (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
    
    (ii) ...; and
    
    (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

24. Section 501(6) of the Act sets out eleven sets of circumstances in which a person does not pass the character test. The first, set out at section 501(6)(a) of the Act, is where a person has a substantial criminal record. In the Applicant’s case, he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined at section 501(7)(c) of the Act.

25. Section 501CA of the Act applies if the Minister has made a decision, known as the “original decision”, under section 501(3A) to cancel a visa that has previously been granted to a person. Section 501CA(4) of the Act 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.

26. As noted at paragraph 17 above, on 24 March 2017, responding to an invitation extended to him under section 501CA(3)(b) of the Act, the Applicant made representations seeking revocation of the Minister’s decision. He therefore satisfied the requirement of section 501CA(4)(a) of the Act.

27. Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501CA of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs(1999) 90 FCR 583 at 591, per Katz J).

28. The Minister has made a direction under s 499 of the Act, namely “Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (emphasis added) (Direction 65). Direction 65 applies to the visa cancellation decision affecting the Applicant.

29. Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following relevant to the Applicant’s case:

    6.1 Objectives

    (1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    (2) ...

    (3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

    (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.

30. By way of general guidance, paragraph 6.2 of Direction 65 provides:

    6.2 General Guidance

    (1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
    
    (2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
    
    (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

31. The “principles” referred to in the General Guidance (as set out above) to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:

    6.3 Principles

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

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.

    (5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

32. Paragraph 7(1) of Direction 65 sets out how the discretion under s 501CA(4) to revoke the cancellation of a visa under s 501(3A) of the Act is to be exercised:

    Informed by the principles in paragraph 6.3 above, a decision-maker:

    (a)...

    (b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

33. Paragraph 8(1) of Direction 65 further states:

    8. Taking the relevant considerations in account

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...

    (2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

    (3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of the visa.

    (4)Primary considerations should generally be given more weight than the other considerations.

    (5)One or more primary considerations may outweigh other primary considerations.

34. Part C of Direction 65 (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Act.

    PRIMARY CONSIDERATIONS

35. Pursuant to paragraph 13(2) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:

    i.Protection of the Australian community from criminal or other serious conduct;

    ii.The best interests of minor children in Australia; and

    iii.Expectations of the Australian community.

    (i)        Protection of the Australian Community

1. Paragraph 13.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above).  Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:

   (a)The nature and seriousness of the person’s conduct to date; and

   (b)The risk to the Australian community should the person commit further offences or engage in other serious conduct. [Emphasis added]

   (a)Nature and seriousness of the conduct

2. Paragraph 13.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct.  Relevantly, these include:

   13.1.1  The nature and seriousness of the conduct

   (1)In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:

   (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously;

   (b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

   (c)The sentence imposed by the court for a crime or crimes;

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

   (e)The cumulative effect of repeated offending;

   …

   Possession of methylamphetamine with intent to sell or supply

3. The Minister submits (Exhibit R2, paragraphs 23-26) that the Applicant’s conduct should be viewed as serious for the following reasons:

   23.      …Taking into consideration the factors relevant to the present application, the applicant’s offences are serious as they involved violence, including two assaults (paragraph 13.1.1(1)(a)) (G16/51). Moreover, the escaping lawful custody offence shows a disregard for government representatives or officials in the performance of their duties (paragraph 13.1.1(1)(b)), and is a serious offence.

   24.      The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and accordingly, any such sentence must be viewed as a reflection of the objective seriousness of the offence involved. In the present case, the applicant was sentenced to various terms of imprisonment ranging from 2 months to 15 months. In relation to the offence of possession of a prohibited drug with intent to sell or supply (methylamphetamine), the sentencing remarks of 10 February 2017 noted that the amount of methylamphetamine that the applicant was caught with wasn’t insignificant and that people caught with such amounts aren’t fined, “they go to gaol” (G19/67). The mandated imprisonment for such behaviour reinforces the serious nature of the applicant’s offending.

   25.       Furthermore, in relation to the offences of unlawfully assault and thereby did bodily harm with circumstances of aggravation, the sentencing magistrate reiterated that, “these types of offences [are] extremely serious. Assaults within families and upon partners cause untold damage within the community and within those relationships. And partners in relationships need to be protected from those closest to them” (G18/57).

   26.      Paragraph 13.1.1(1)(e) of Direction 65 requires the Tribunal to consider the cumulative effect of repeated offending. When looked at cumulatively, the applicant’s offences are serious and the most recent violent offences of unlawfully assault and thereby did bodily harm with circumstances of aggravation indicates a trend of increasing seriousness particularly in circumstances where the offences were committed whilst the applicant was on bail (paragraph 13.1.1(1)(f)).

4. At the hearing of the application it was accepted by the Minister that the National Police Certificate (Exhibit R1, G16) was incorrect, or at least poorly set out, and that there is in fact only one conviction for “unlawful assault and thereby did bodily harm with circumstances of aggravation”.

5. The Applicant’s SFIC raises the following matters (Exhibit A1, paragraph 35):

   Eaton DCJ noted (G19, DC transcript) that:

   ·The applicant was not a persistent, high level dealer.

   ·The applicant was dealing in methylamphetamine “in a small way”.

   ·The amount found in the applicant’s possession (9.28 grams) was “not an insignificant amount”, but was “not a particularly large amount either”.

   ·There was no suggestion that applicant was close to the manufacturing process for the methylamphetamine or was a big dealer in the drug.

   ·The applicant had allowed himself, by way of really poor judgment on his part, to progress from occasional use on a recreational basis to actually dealing, even on a small basis

6. The Applicant also submitted at paragraph 36 of the Applicant’s SFIC that:

   Notwithstanding the above, Eaton DCJ declined to order a suspended term of imprisonment with conditions noting that the Court of Appeal has said that even for a small involvement in dealing in methylamphetamine should attract a term of imprisonment to be served immediately. His Honour was therefore bound to impose an immediate term of imprisonment, albeit one of short duration, 15 months, backdated, which amounts to 5% of the maximum term for this offence (25 years). The sentence imposed was therefore a tiny fraction of the maximum sentence, demonstrating that the court viewed the applicant’s offending at the lowest end of the scale of seriousness for this type of offence.

7. While the Tribunal accepts that methylamphetamine is a scourge and dealing in methylamphetamine is intrinsically a serious offence, the Tribunal notes that the Applicant’s involvement in dealing, as noted by Eaton DCJ, was relatively minor. It is also noted that this was the Applicant’s first offence involving drugs and, although he was also convicted of three other drug related offences, they arose out of the same search and an associated search of premises on 16 June 2016. As noted by Eaton DCJ, it seems that the Applicant followed the all too common spiral starting with minor recreational methylamphetamine use progressing to more and more frequent use and finally addiction and dealing to support the addiction. The Applicant’s evidence was that he started using methylamphetamine when he was at a low ebb in late 2014. This increased over the following 18 or so months to the point where he was using a couple of times a day at the time of his arrest in June 2016.

8. The Tribunal does not disagree with the Minister’s submission that the length of the sentence imposed by the Court for the methylamphtamine possession with intent to sell or supply, 15 months, is indicative of the seriousness of the offence, however, it must be seen in the context of a cancellation of a visa under s 501 of the Act and the definition of substantial criminal record as defined in s 501(7) of the Act. It is only offences which result in a term of imprisonment for 12 or more months that arise for consideration. In that context, and in the context of other much longer sentences that this Tribunal has seen imposed by the courts for methylamphetamine possession with intent to sell or supply, the sentence imposed on the Applicant suggests that the court considered this, while obviously serious, to be at the lower end of the scale of offences of this kind.

9. Notwithstanding that the Applicant’s offence of possession of methylamphetamine with intent to sell or supply is at the lower end of the scale for such offences, it is still an undoubtedly serious offence and, on balance, weighs against the exercise of the discretion to revoke the cancellation of the Applicant’s visa.

   Other offences

10. The search of the vehicle and a following search of the Applicant’s premises on 16 June 2016 also resulted in the charges relating to possession of MDMA and cannabis. The quantities involved were small and the fines imposed relatively minor with the sentences imposed all being concurrent with the 15 month sentence for the methylamphetamine possession with intent to sell or supply.

11. The escaping lawful custody conviction also arose out of the search on 16 June 2016. The evidence was that the Applicant ran off when the police were searching the vehicle in which the drugs were located. He did not get far, somewhere around a couple of hundred metres, before he was apprehended by police with the use of a police dog. The Applicant claims that at the time he was under the influence of drugs and alcohol and simply panicked and ran. As Eaton DCJ put it (G19, 64):

    You didn’t get very far, maybe a couple of 100 metres at the most. Maybe you were under the influence of alcohol or something at the time, and you behaved, perhaps, stupidly

12. The Tribunal accepts that the escape of lawful custody was an instinctive act of stupidity born out of panic and a lack of thinking rather than a pre-meditated serious attempt to evade police. The fine imposed by the court for this offence ($500) is, in the scheme of things, minor and indicative of it not being considered a serious offence by the court.

13. Of more concern, however, is the charge of assault arising out of a domestic incident with the Applicant’s partner Ms Silvestro on 1 November 2016. The evidence of the Applicant and Ms Silvestro was that they had been at a Melbourne Cup function and had been drinking for the best part of the day when they returned to Ms Silvestro’s residence. The details of the events of the night are somewhat confused and Ms Silvestro disputes the summary of events contained in her statement prepared by police who attended. The statement was not signed by Ms Silvestro. The two main versions of events seem to be that the Applicant took Ms Silvestro in a bear hug and threw her to the ground, whilst still in the bear hug, momentarily knocking her out and causing her a blood-nose, split lip and a loose tooth (Police Statement of Material Facts Exhibit R3, page 31 and unsigned statement of Ms Silvestro, Exhibit R3, page 35-37).

14. The Applicant’s version is that he pushed over an outdoor heater (the criminal damage charge) and pushed Ms Silvestro to the ground (Applicant’s Statutory Declaration dated 18 January 2018, Exhibit A2, pages 1-5). At the hearing Ms Silvestro asserted that she had been angry with the Applicant and may have exaggerated, she had not wanted to press charges but the police who attended insisted that she do so and they prepared the statement for her. Her evidence at the hearing was that the Applicant pushed her and that she fell hitting her mouth on a brick causing the swelling and the loose tooth.

15. Whatever the detail the fact is that the Applicant assaulted Ms Silvestro and that that assault resulted in injury, albeit relatively minor, to Ms Silvestro. As with all of the other charges, the Applicant pleaded guilty to this charge at the earliest opportunity.

16. While assaulting a vulnerable member of the community is always serious, this incident which seems to have followed excessive consumption of alcohol by both parties, does seem to have been an isolated incident for which the Applicant has expressed deep remorse. The Tribunal accepts the sincerity of that expression of remorse as, it seems, does Ms Silvestro.

    Frequency and trend of offending

17. Paragraphs 13.1.1(d) and (e) of Direction 65 direct the decision maker to consider whether there is a trend of increasing seriousness of offending and the cumulative effect of repeat offending. The Applicant’s criminal record, apart from the 2014 disorderly behaviour in public, which was apparently urinating in public for which a spent conviction was recorded, does not show any trend of increasing seriousness. There are, in effect, only two relevant dates, 16 June 2016 for the drug and escape custody offences and 1 November 2016 for the damage and assault offences. There is no relevant trend nor, in the Tribunal’s view, is there any relevant repeat offending.

18. In this regard the Tribunal notes the comments of Eaton DCJ that the Applicant’s offending occurred “in this fairly short period”, and that the Applicant “virtually got (sic) no record” (Exhibit R1, G31, page 111).

    (b)  The risk to the Australian community should further offences be committed.

19. Paragraph 13.1.2(1) of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community.  It provides:      

    13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

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

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

20. The Applicant’s SFIC points to the following in relation to the risk to the Australian community (Exhibit A1, paragraph 54):

    ·     The applicant pleaded guilty at an early opportunity (G18, 57).

    ·     The Magistrate found that the early guilty plea was a genuine sign of remorse (G18, 57).

    ·     The Magistrate stated the following (G18, 57):

    You’ve otherwise been a good citizen and a good contributor, not only to New Zealand, but perhaps more internationally. I’ve noted your active service in Afghanistan as a member of the New Zealand Armed Forces. So you have that very distinguished history across 10 years. And also a good trade, as I understand it, as you went through your service with the New Zealand Defence Force.

    In relation to the methylamphetamine possession, the Court (Eaton DCJ) made a number of positive comments about the applicant’s prospects of rehabilitation (G19, 64-68):

    ·     It is the case that you have many things going for you.

    ·     You, have a got lot going for you in terms of work ethic, in terms of the fact that people support you.

    ·     What I’ve read about you suggests that you do have finer qualities.

    ·     But you’ve got plenty of family support and the support of others, so with your own determination you should be able to make sure that you don’t return to the use of such a pernicious drug.

    ·     In your case I don’t discern a need for a substantial term of imprisonment to be imposed.

    ·     I think you’d have a very good case with the Prisoner Review Board. And if you are, you’ll be free to get back into the community and put all these – this awful period in your life behind you.

21. The Applicant while in prison completed the following courses:

    ·Lifeskills course;

    ·“Peaceful Pathways” course (Exhibit R1, G36); and

    ·Narcotics anonymous.

22. The Applicant’s Individual Management Plan (G36) prepared by the authorities at Acacia Prison contained the following comments:

    The applicant’s classification has been reduced to “MINIMUM security”.

    Staff state Mr Mahu is polite and respectful towards the block staff and follows directions without issue. He appears to interact with fellow prisoners and does not need to be reminder of the block or prison rules. He maintains his cell and personal hygiene to the required standards.

    Staff state Mr Mahu works as an assistant Mechanic. He is considered to be an exceptional worker who is polite and accommodating to both staff and fellow peers. He has a mature attitude, is capable of processing all work required and has been known to look for tasks to complete. Mr Mahu attend all shift required of him and follows instructions and directions from staff.

23. While in prison the Applicant has also been receiving ongoing counselling. The counsellor’s file notes are contained on pages 62-89 of Exhibit A2. These notes, the last dated 14 December 2017, show that the Applicant is taking serious steps in addressing his psychological issues including his drug use. His progression, as indicated by these file notes, is encouraging.

24. The Respondent (Exhibit R2, paragraph 29) submits that the Applicant has a “longstanding history of drug use commencing in 2014”. The Applicant’s evidence at the hearing was that he started using methylamphetamine late in 2014 and used it up until he was taken into custody in November 2016 on the drug related charges. Whether drug use over a period of around two years is a “longstanding history of drug use” is arguable, the more critical issue for the Tribunal is the likelihood of the Applicant slipping back into methylamphetamine use.

25. The obvious “blip on the radar” in this regard is the fact that while in prison the Applicant tested positive to cannabis causing him to lose rights and to be transferred out of Acacia Prison to Woorolooo Prison. His evidence was that he used cannabis only once because he was particularly stressed at the time. He said that other drugs, including methylamphetamine, were readily available in prison, however, he did not use other than the one instance of cannabis.

26. While it is of obvious concern that the Applicant used cannabis while in prison, it does seem that he has not used methylamphetamine since he was taken into custody in November 2016. On the evidence available to the Tribunal it also seems to the Tribunal that the Applicant is sincere in his efforts to not go back to methylamphetamine use. The consequences of him doing so are dire, something that seems to be appreciated by the Applicant.

27. The Applicant for many years had led a law-abiding, hard-working life making a significant contribution to those around him and the broader community through his military service and then through paid employment. The Applicant is not a career criminal or someone who has actively chosen a life of crime but rather someone who, under stress, made a very bad decision which has led to his convictions. As Eaton DCJ put it, this is a period that the Applicant has to put behind him.

28. Based on the Applicant’s history of positive contribution and responsible behaviour prior to his being dragged down by his tragic decision to use methylamphetamine the Tribunal is of the view that the Applicant’s risk of re-offending is sufficiently low as not to be unacceptable.

    (ii)  Best interests of minor children in Australia

29. The Applicant has two children both of whom live with their mother in New Zealand. He has no contact with them.

30. In his Personal Circumstances Form dated 24 March 2017 (Exhibit R1, G22), in response to the Minister’s notice of mandatory visa cancellation, the Applicant identified (Exhibit R1, G22 at page 84) three minor children in his life being two nephews and the daughter of Ms Silvestro.

31. Paragraph 13.2(4) of Direction 65 sets out the factors the Tribunal must consider if relevant. They are:

    (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 not 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 contact 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 any 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 non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

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

1. In relation to each of the factors (a) to (h) listed in paragraph 13.2(4) of Direction 65 (set out in paragraph 66 above), the Tribunal finds:

   (a)It could not be said that the Applicant has a parenting role with any of the minor children identified. The Applicant’s Personal Circumstances Form (G22 at 84) identifies the primary carer of his brother’s children as being his brother. While there may be natural love and affection between the Applicant and his nephews, his role in their lives is not one that the Tribunal considers to be sufficient for this consideration.  In relation to his relationship with Ms Silvestro’s daughter who is 14 years old, the Tribunal understand that while the Applicant and Ms Silvestro may be in a relationship, it appears (the evidence is not clear) that the Applicant and Ms Silvestro did not live together. In the various police reports the Applicant’s address is recorded as his address in Darch (Exhibit R3, pages 8, 10 and 30). Ms Silvestro lives at a different address. At the hearing Ms Silvestro’s evidence was that the Applicant spent a lot of time, including nights, at her home. That appears to have been the case at the time of the offences in June 2016 and in November 2016 immediately before the Applicant was taken into custody. On that basis, and taking into account that the Applicant’s relationship with Ms Silvestro only started in 2014, it would appear that the Applicant would not have had any, or any significant, parenting role in relation to Ms Silvestro’s daughter. Again while it appears from the statutory declaration of Ms Silvestro’s daughter and letters from her that were included in the material before the Tribunal, there is affection between the Applicant and Ms Silvestro’s daughter, the relationship is not one that is significant for the purposes of paragraph 13.2(4) of Direction 65.

   (b)On the evidence, the parental roles for the minor children identified by the Applicant are provided by, in the case of the Applicant’s nephews, their father, and in the case of Ms Silvestro’s daughter, Ms Silvestro. The Tribunal also notes that Ms Silvestro’s daughter has two adult brothers both of whom live in Western Australia so there are male figures in her life.

   (c)Ms Silvestro’s daughter made the call to the police on 16 June 2016 which led to the police attending at Ms Silvestro’s home and the search of the vehicle which disclosed the drugs in relation to which the Applicant was charged. The Applicant’s aggressive behaviour towards Ms Silvestro and his refusal to leave the house had caused Ms Silvestro’s daughter, then aged 12, to call the police. In that regard the Applicant was anything but a role model for the child and the impact on her of his conduct towards her mother would clearly have been negative.

   (d)Given the relatively short duration of the relationship between the Applicant and Ms Silvestro’s daughter and given the fact that, as far as the evidence indicates, the Applicant was not living with Ms Silvestro and her daughter before his incarceration, the Tribunal does not consider that Ms Silvestro’s daughter would be adversely affected if the Applicant’s visa were to be cancelled. While both the daughter and the Applicant claim that they would be upset by cancellation of the Applicant’s visa, that, in the Tribunal’s view, is not sufficient to be considered a factor that would militate against the cancellation of the visa for the purposes of subparagraph (d). To be considered a factor in the decision, the effect would need to be more substantial and more long-lasting. The Tribunal is also mindful of the fact that contact could be maintained by the internet and other means if the Applicant were to return to New Zealand.

   (e)As noted above, clearly in the case of the Applicant’s nephews, their father fulfils the parenting role. In the case of Ms Silvestro’s daughter, it appears that Ms Silvestro fulfilled the parenting role prior to her relationship with the Applicant and even during the period of their relationship. There is no reason to believe that that would not continue.

   (f)Ms Silvestro’s daughter has made a statement in which she makes it clear that she is fond of the Applicant and her desire is that he stays in Australia.

   (g)Apart from the Applicant’s aggressive and threatening behaviour towards Ms Silvestro in June 2016 which caused Ms Silvestro’s daughter to call police, there is no evidence of the Applicant having abused or neglected Ms Silvestro’s daughter. The Tribunal does consider, however, that displaying such aggression and threatening behaviour in the presence of a child towards the child’s mother, to the point where the child calls the police, is highly likely to be harmful to the child and to the child’s perception of acceptable behaviour.

   (h)The Tribunal repeats the comments at (g) above.

2. The Tribunal finds that there is nothing to indicate that, apart from being upset by the Applicant having to return to New Zealand, the cancellation of the Applicant’s visa would adversely impact Ms Silvestro’s daughter or the Applicant’s nephews.

   (iii) Expectations of the Australian community

3. The third consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction No. 65 states:

   The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

4. In analysing this third and primary consideration, the Tribunal again refers to the stated principles in paragraph 6.3 of Direction 65 and, in particular, the principles that:

   ·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes (paragraph 6.3(2));

   ·non-citizens who commit serious crimes, including of a violent or sexual nature, should generally expect to forfeit the privilege of staying in Australia (paragraph 6.3(3));

   ·in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (paragraph 6.3(4)); and

   ·the length of time a non-citizen has been making a positive contribution to the community (paragraph 6.3(7))

5. The Applicant cites the often quoted statement of Deputy President McCabe in Labi and Minister for Immigration and Border Protection [2016] AATA 316 at [60]:

   The Direction points out the Australian Community expects non-citizens will obey Australian laws while they remain in this country. But the Direction implicitly acknowledges the community is not completely intolerant of risk: rather, it will have regard to the nature of the character concerns or offences and make a reasonable judgment. In short, one can rely on the Australian community, when fully informed of the facts, to demonstrate some perspective and settle on an outcome that is proportionate.

6. The Applicant also refers to KDSP and Minister for Immigration and Border Protection [2017] AATA 2169, wherein Senior Member M J McGrowdie stated at [36]:

   The Australian community could not be said to be intolerant of any risk. While the Australian community abhors domestic violence, looking at the whole of the circumstances of the applicant's behaviour, I would consider that the Australian community would not assume that the applicant will reoffend, that regard would be had to the fact that the applicant not only has served a jail sentence for his offending, but he has also been held in detention since his release from prison. I conclude that the Australian community would be accepting of providing the applicant with the opportunity to remain in Australia on a limited stay visa, with the applicant knowing that any infringement would likely result in a cancellation of that visa.

7. The Minister argues that possession of methylamphetamine with intent to sell or supply is an offence for which the Australian community would expect that the Applicant would lose the right to hold a visa. The Minister points to the comment in the case of Re Sharma and the Minister for Immigration and Border Protection [2015] AATA 608 at [37] that domestic violence is “fundamentally inconsistent with the standard of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character”. However, the Minister does concede that, in line with Principle 6.3(5) of Direction 65 a greater level of tolerance may be afforded to those who have spent a significant time in Australia and that in the Applicant’s case he has spent considerable periods in Australia. The Tribunal also considers that the positive contribution that the Applicant has made directly to the community while in Australia, both through gainful employment and involvement in community activities, and indirectly to the security of the broader Australian community through his military service with the New Zealand armed forces in Afghanistan, would also garner more tolerance from the Australian community.

8. The Tribunal also refers to the principle identified in paragraph 6.3(7) of Direction 65 which directs the decision-maker to consider:

   The length of time a non-citizen has been making a positive contribution to the Australian community, …

9. The Tribunal also notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [68] that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.” That assessment should be made on the basis of the individual circumstances of each case and considered in light of the purpose of the legislation. The Tribunal agrees that that is the appropriate approach.

10. The Tribunal also notes Deputy President McCabe’s comments in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23]:

    A decision-maker is, to some extent, required to guess at the community’s expectations... As I begin my deliberations, I assume the Australian community would be fair-minded and mature... The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done

11. A similar formulation was expressed by this Tribunal in Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36]:

    … the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.

12. The Tribunal notes and takes into account in this decision the statements of principle set out in those cases.

13. While in many cases the possession of methylamphetamine with intent to sell or supply, coupled with the assault conviction, would be sufficient for the Australian community to expect the cancellation of an offender’s visa the circumstances of the offences including the one-off nature of the Applicant’s offending and the sentencing judge’s observations as to the minor nature of the Applicant’s involvement, indicate to the Tribunal that this is not such a case. The Tribunal’s view is that taking into account the circumstances of the offending, its one-off nature and the Applicant’s minor role, the period spent by the Applicant in Australia prior to his offending and the positive contribution made to the community, including his service in Afghanistan, the Australian community’s expectation would be that the Applicant be given a second chance.

    (iv) Other considerations

14. Paragraph 14(1) of Direction 65 provides:

    14.Other considerations - revocation requests

    (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a)     International non-refoulement obligations;

    (b)     Strength, nature and duration of ties;

    (c)     Impact on Australian business interests;

    (d)     Impact on victims;

    (e)     Extent of impediments if removed.

15. Based on the evidence before the Tribunal, the only other considerations that may be relevant in the present case are the strength, nature and duration of the Applicant’s ties with Australia and extent of impediments to him if removed.

    Strength, nature and duration of ties

16. Paragraph 14.2(1) of Direction 65 requires the Tribunal to consider the Applicant’s ties to Australia as follows:

    14.2     Strength, nature and duration of ties

    (1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

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

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

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

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

17. The Applicant arrived in Australia with his family as an 11 year old in 1997. He attended primary school and then high school in Western Australia finishing his high school education in 2002 (Exhibit R1, G22 at page 96). The Applicant’s family, including his mother and step father, two brothers (and their children), an uncle and an aunty and five cousins, live in Australia (Exhibit R1, G22 at page 86). It is noted that the majority of these relatives are New Zealand citizens. On his return to Australia in 2014 the Applicant appears to have been employed at all times as a diesel mechanic up to his incarceration in November 2016 and then for around a month while on bail awaiting sentencing in February 2017. The Applicant has a former partner and two children in New Zealand. His evidence was that he has no contact with them. While the Applicant does not refer to having any ties with New Zealand, the Tribunal finds it hard to accept that having served in the New Zealand army for nearly 10 years and having lived in New Zealand from 2002 to 2014 that the Applicant would not have significant ties with and social links in New Zealand.

18. In looking at the length of time that the Applicant has spent in Australia, particularly in looking at the length of time spent prior to the Applicant offending, the more material period is the period from March 2014, when the Applicant returned to live in Australia after a 12 year absence, up to June 2016 when the Applicant was arrested. It is also noted that on his own evidence the Applicant started taking methylamphetamine towards the end of 2014, that is well within a year of his returning to Australia.

19. Overall the consideration of the strength of the Applicant’s ties to Australia, his contribution to the Australian community and the time spent in Australia before he commenced offending is significant. Up to the time of his incarceration in 2017, the Applicant had spent more than 12 of the previous 20 years outside Australia. While the Applicant spent five years of schooling in Australia and a large number of his family is resident in Australia and he was, upon his return, employed, his drug use and his offending commenced relatively shortly after his return to Australia.

20. The Applicant also points to his ties with Ms Silvestro and her daughter and adult sons. While Ms Silvestro is presently supportive of the Applicant, the Tribunal notes that this has not always been the case and that their relationship has been volatile. Both of the Applicant’s arrests arose out of domestic disputes, one violent, between the Applicant and Ms Silvestro. The Tribunal also notes that the Applicant has previously been in an apparently long-term relationship with another woman in New Zealand which produced two children. That relationship, however, did not last so the fact that the Applicant may now be in a relationship does not necessarily weigh heavily in the Tribunal’s considerations.

21. Taking all of these matters into consideration and in light of the factor identified in paragraph 14.2 (1) of Direction 65, the Applicant’s ties to Australia weigh marginally in favour of a revocation of the cancellation of the Applicant’s visa.

    Extent of impediments if removed

22. Paragraph 14.5(1) of Direction 65 requires the Tribunal to consider the extent of any impediments if an applicant is removed from Australia as follows:

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

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

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

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

23. In the Applicant’s Personal Circumstances Form (Exhibit R1, G22 at page 99) the Applicant identifies the possible risk of depression if he is made to return to New Zealand. The Counselling Session File Notes (included in Exhibit A2) refer to the Applicant being treated for depression previously; however, there is no suggestion that appropriate medical care, including care for mental health issues, would not be available to the Applicant in New Zealand. The Applicant is a New Zealand citizen and an ex-serviceman and would have access to the basic social, medical and economic support in that country. 

24. The Tribunal finds that there are no relevant impediments to the Applicant’s removal to New Zealand.

    CONCLUSION

25. Having received a sentence of a term of imprisonment in excess of 12 months, the Applicant has a “substantial criminal record” and, as a result, does not pass the character test in s 501(6) of the Act. Further, as the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Act which duly occurred on 23 March 2017.

26. In determining whether there is any reason why the decision to cancel the Applicant’s visa should be revoked, the Tribunal has attached weight to the seriousness of the Applicant’s criminal record. The Tribunal does note, however, that the Applicant’s convictions arose out of two incidents and that there is no repeat offending. While methylamphetamine dealing is obviously very serious, the Applicant’s involvement was at the lower end of the scale and appears to be isolated and out of character.  

27. The Tribunal is of the view that the risk of the Applicant reoffending is sufficiently low to counterbalance the seriousness of the Applicant’s offences. It seems clear that prior to his addiction to methylamphetamine the Applicant was a law abiding citizen who had contributed positively and served his country. As is so often the case with methylamphetamine, the Applicant’s criminal behaviour was driven by the drug addiction. While there can never be any guarantee that any individual who has found himself or herself in circumstances such as the Applicant will not reoffend, the Tribunal accepts the evidence of the Applicant and those who gave evidence on his behalf that the Applicant has addressed his addiction and is fully aware that he is on his last chance.

1. On balance, while it could not be said that there was no risk that the Applicant would reoffend, the risk is not unacceptable.

2. Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction 65, the correct and preferable decision is to revoke the cancellation of the Applicant’s visa.

   DECISION

3. For the reasons outlined above, the decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) be revoked.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle

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

Administrative Assistant - Legal

Dated: 2 February 2018

Date of hearing:	24 January 2018
Representative for the Applicant:	Mr David Blades
Solicitors for the Applicant:	Putt Legal
Representative for the Respondent:	Mr Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers