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

[2023] AATA 3375

McGlone and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3375 (19 October 2023)

Division:GENERAL DIVISION

File Number:2022/5360         

Re:Richard McGlone  

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Hon J Rau SC

Date:19 October 2023

Place:Adelaide Registry

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent 20 June 2022 that the mandatory cancellation of the Applicant's Class TY subclass 444 Special Category (Temporary) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) and substitutes a decision to revoke the mandatory cancellation of the Applicant's visa.

………………….[Sgnd]……………………..        

Senior Member Hon J Rau SC

CATCHWORDS

MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa under section 501(3A) - where Applicant does not pass the character test – Applicant has substantial criminal record – consideration of Applicant’s assertion of indigeneity –Application of Tripartite test – consideration of asserted indigeneity by association in the context of links to the Australian community -  whether the discretion to revoke the visa cancelation under section 501CA (4) should be exercised – consideration of Ministerial Direction No. 99 - decision under review is revoked.

LEGISLATION

Family Law Act 1975 (Cth)

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

FYBR v Minister for Home Affairs [2019] FCA 500

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Love v Commonwealth (2020) 270 CLR 152

Mabo v Queensland (No 2) (1992) 175 CLR 1

SECONDARY MATERIAL

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Hon J Rau SC

19 October 2023

INTRODUCTION

1. The Applicant seeks a review of the decision by a delegate (“the reviewable decision”) of the Minister for Home Affairs (“the Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 17 June 2022, not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (“the Visa”).

2. The visa was cancelled on 15 January 2021 under section 501(3A) of the Act, on the basis that he did not pass the character test.[1]

   [1] Remittal Bundle of Documents, Folio 4, pp 149-167.

3. Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. The Applicant fails the character test on account of being convicted in the District Court of NSW of “Conspiracy import/export a commercial qty of border controlled drugs/plants” on 13 November 2020. The Court also took into account “Dealing with proceeds of crime $10,000 or more”, and “joint commission import/export commercial qty border controlled precursors” He was sentenced to imprisonment for 7 years and 3 months.[2]

   [2] Ibid, p 276.

4. The Applicant quite properly concedes that he does not pass the character test. The issue before the Tribunal is whether there is ‘another reason’ to revoke the mandatory visa cancellation pursuant to s 501CA(4)(b)(ii) of the Act.

5. The hearing was held on 28 September 2023. The Applicant was represented by Mr Tanguy Mwilambwe of Taylor Rose and the Respondent was represented by Mr Sam Murray of counsel, instructed by Ms Hee-Jung Kim.

6. The Applicant gave evidence by Microsoft Teams. He generally engaged in a direct and forthright manner. He made appropriate concessions on many occasions, sometimes in circumstances where to do so, was against his interest. The Applicant’s evidence however, contained some elements which raised serious questions about his truthfulness. Two examples, which are discussed below, include his recent engagement with rehabilitation services and his recent assertion of indigeneity. A great deal of weight in this case rests on the Applicant’s credibility. If he can be believed and trusted to act in accordance with his assurances to the Tribunal, he may present a low risk of reoffending. If there is reason not to have confidence in his reliability, the risk that he presents to the community commensurately increases.

7. The Applicant called Mr Monroe Watson, Psychologist, as an expert witness. He gave evidence by telephone. He seemed to be focused on the single episode of a conspiracy to import drugs, somewhat downplaying the Applicant’s independent history of personal drug dealing in the process. His evidence was nevertheless, on the whole, helpful.

8. The Applicant otherwise relied on the voluminous written materials admitted as evidence. These included materials and transcript from his previous case in the AAT, in September 2022.

9. Unusually in cases such as this, the parties produced an agreed statement of facts on the eve of the hearing (Annexure A). This document dealt with procedural matters, the Applicant’s criminal history, the Applicant’s history of family violence and other matters. This document was very helpful to the Tribunal and it enabled the parties to focus on the matters in dispute. For the most part, these concerned the relative weight to be given to each the Primary Considerations and Other Consideration (b).  

   JURISDICTION- PRELIMINARY POINT

10. The Applicant advised the Tribunal on 28 July 2023 in his Supplementary Statement of Facts, Issues and Contentions that:

    “The Applicant submits that he is an Aboriginal Australian because, inter alia, he self identifies as one, and he is a Member of the Coonabarabran Local Aboriginal Land Council under the provisions of the Aboriginal Land Rights Act 1983(NSW).

    As an Aboriginal Australian, the Respondent was and is not authorised to detain the
    Applicant pursuant to section 189 of the Act. This is because Aboriginal Australians,
    understood according to the tripartite test in Mabo, are not “aliens” and therefore cannot
    be deported under laws passed under the “aliens’ power” conferred on the Commonwealth

    Parliament by section 51(xix) of the Constitution. This proposition is supported by the

    decision of Love and Thoms.”[3]

    [3] Exhibit 6, Supplementary Statement of Facts, Issues and Contentions, Part V, 11-12.

11. I note that this claim of aboriginality, seems only to have been formally asserted by the Applicant since 28 July 2023. When this matter was before the Tribunal in September 2022, it was apparently not raised[4]. As recently as May 2023, the Applicant described himself to his assessing psychologist, Mr Monroe-Watson, as being “Māori and Irish”.[5]

    [4] Love v Commonwealth (2020) 270 CLR 152.

    [5] Exhibit 1, Statement of Issues, Facts and Contentions, Report of Consultant Psychologist Tim Watson-Munro, 258.

12. The Applicant in these proceedings argued that:

    1.    although he is not biologically descended from indigenous people, he identifies as, and has been recognised as, an Aboriginal Australian;

    2.    the Applicant asserts that he is therefore, an Aboriginal Australian and is, as a legal   consequence, a non-citizen, non-alien;

    3. His status as a non-citizen, non-alien means:

    (i) he is not an unlawful non-citizen;

    (ii) he is being unlawfully detained; and

    (iii) the Tribunal has no jurisdiction to consider the present application.

13. This raises two questions;

    1. Is the Applicant Aboriginal person?

    2. If he is, what does this mean for the Tribunal’s jurisdiction to hear this matter?

    CONSIDERATION OF JURISDICTION

14. In Love v The Commonwealth, the High Court held that, “Aboriginal Australians (understood according to the tripartite test in Mabo [No 2]) are not within the reach of the “aliens” power conferred by s 51(xix) of the Constitution”.[6]

    [6] Love v Commonwealth (2020) 270 CLR 152 [81].

15. In Mabo v Queensland (No 2)[7] Brennan J articulated a tripartite test for establishing whether a person was indigenous.

    [7] Mabo v Queensland (No 2) (1992) 175 CLR 1 [70].

16. The tripartite test has the following limbs:

    1.biological descent from indigenous people;

    2.self-identification as a member of an indigenous community; and

    3.recognition as such by elders or other persons enjoying traditional authority among those people.

17. It is necessary to satisfy each of these limbs.

18. Where a non-citizen does so, they fall within the category of people who are “non-citizen, non-aliens” and are not within the reach of the aliens power conferred by s 51(xix) of the Australian Constitution.

19. The Tribunal finds, that having regard to the fact that the Applicant does not have, or assert that he has, Aboriginal ancestry, he has failed to satisfy the first limb of the tripartite test. It is unnecessary in this jurisdictional context therefore, to consider the second and third limbs of the test.

20. These second and third limbs are however considered by the Tribunal elsewhere, particularly in the context of Primary Consideration 3.  If it were necessary to consider those limbs in this jurisdictional context, (which I find that it is not), the Applicant would also fail to establish them. This unmeritorious claim reflects poorly on the Applicant’s credit.

21. The Tribunal has found that Applicant is, therefore, an alien for the purposes of the Act. The matter is accordingly able proceed in the normal manner.

22. The issue of jurisdiction, as raised by the Applicant, does not arise.

    Background Facts

23. The Applicant was born in New Zealand on 14June 1976. He is 47 years old. He is a citizen of New Zealand. He is of Māori and Irish descent. He is the second of three siblings. His younger sister lives in New Zealand. He says that his relationship with her is poor.  His older brother lives in Australia. Their relationship was strained for a while, but is now repaired.[8]

    [8] Exhibit 1, Statement of Facts, Issues and Contentions, Report of Consultant Psychologist Tim Watson-Munro, 258.

24. On 4 November 1980, his family migrated to Australia. He was four years old.[9]

    [9] Exhibit 10, Remittal Bundle, Movement Records & Passenger Cards Request Form, 494.

25. He had a difficult childhood. He was exposed to significant domestic violence. His parents abused alcohol and each other. The family were renters and moved house frequently.

26. The Applicant attended kindergarten, primary school and completed his High School Certificate in Australia[10]. After completing school, he played professional football including a few first-grade games for St George Dragons. Following a series of injuries and a loss of passion for the sport, he retired from football.

    [10] Ibid, Psychological Assessment Report, 414-417.

27. In about 1995, at the age of 19, the Applicant commenced a relationship with PD. PD is nine years older than him. They have three adult sons.

28. Between the ages of 20 and 24, the Applicant held a position as a baggage handler at Sydney Airport.[11] At the age of 25, he pursued his interests in personal training.

    [11] Ibid, 278.

29. In a history given to psychologist Tim Watson-Monroe in May 2023, the Applicant stated that PD is indigenous.[12] This is also asserted by PD in a statement dated 11 May 2023, in which she says that she is the granddaughter of a member of the “Stolen Generation”.[13]

    [12] Exhibit 1, Statement of Facts, Issues and Contentions, Report of Consultant Psychologist Tim Watson-Munro, 259.

    [13] Ibid, Statement of Facts, Issues and Contentions, Statutory Declaration of PD, 276.

30. In May 1997, the Applicant’s first son, DD was born. He is now 26 years old.[14]

    [14] Exhibit 10, Remittal Bundle of Documents, Birth Certificate, 370.

31. In November 1998, the Applicant’s second son, MD was born. He is now 24 years old.[15]

    [15] Ibid, 374.

32. In December 2000, the Applicant’s third son KD was born. He is now 22 years old.[16]

    [16] Ibid, 371.

33. In about 2002, the Applicant and PD separated. He was about 25 at the time. He reported to a psychologist that he began using cocaine and ecstasy at this time. He reports having used 1-3.3 grams per week.[17] This is to be contrasted with his report to a health nurse on February 2022 that he started using cocaine and drinking alcohol when he was aged 40.[18]

    [17] Ibid, Psychological Assessment Report, 417[1.4].

    [18] Ibid, Clinical Records, 741.

34. In 2005, the Applicant met JM. He was 28years old. She is 6 years younger than him. He reports also having commenced gambling at this time. By 2007 he reports having gambled “upwards of $50k” most weeks.[19] Gambling on this scale would have required access to a great deal of money. There is no evidence to suggest that the Applicant’s legitimate business activities at the time, can explain his lavish lifestyle, his gambling, or his drug habits. This raises serious, unanswered questions about the full extent and duration of the Applicant’s involvement in the drug trade before his arrest in 2013.

    [19] Ibid, Psychological Assessment Report, 417[1.4].

35. The Applicant has conceded that his criminal behaviour was motivated by considerations of financial gain and to maintain his lifestyle. His offending in 2013 was not an isolated instance, committed by a cleanskin, motivated only by a need to repay a debt. Prior to his arrest, the Applicant was keeping company with criminal figures, one of whom he described to the Tribunal as a “second father”.[20]

    [20] Annexure A, Statement of Agreed Facts, 25-35.

36. On 14 July 2006, there are NSW Police records regarding a complaint of family violence against the Applicant by PD. An ADVO was issued against the Applicant.[21]

    [21] Exhibit 10, Remittal Bundle of Documents, AVO Complaint, 1264-1268.

37. The substance of this conduct has been agreed between the parties.[22]

    [22] Annexure A, Statement of Agreed Facts, 33-51.

38. PD’s contemporaneous victim statement says:

    “……

    I met my former partner in 1995. We were involved in a de-facto relationship which was on and off until we separated in 2002. As a result of the relationship we had three boys together [DD] 9, [MD] 7 and [KD] who is 5. We have had normal domestic arguments in the past, but nothing violent or anything requiring the police.

    About 10:30am on Friday 14^th July 2006, [the Applicant] Came over with the kids to have their christening papers signed as the kids were christened on Monday. [The Applicant] And I had been arguing on the phone earlier because [the Applicant] was supposed to be here at 8:30am. When [the Applicant] was at the house he wanted the forms taken out to him in the car, I had them laid out on the table.

    He began to sign them and we began to argue again. The argument was about the address being poor on the forms, and [the Applicant’s] knew girlfriend. The argument became very heated. [The Applicant] started calling me a slut, nothing but a slut in front of my kids, the argument continued and I became very upset. [The Applicant] and I headed towards the front door. I thought he was going to leave. We became involved in another argument about the kids having a biscuit. Then [the Applicant] said, “I am happy with my life it couldn't be better, my girlfriends pregnant”. I was very hurt and angry and told him to get out of my home. I pushed with an open palm around his shoulder to get him out. He said, “don't fucking hit me again or something will happen”. I don't recall exactly what he said.

    He grabbed me by my arm and my throat and pushed me up against the pane of glass by the front door. Then I was on the ground and [the Applicant] had one of his hands around my throat. I was kicking and thrashing trying to get away, I could hear the kids crying and screaming, they were saying “No dad, stop”. I was yelling to [DD] to call the police. [The Applicant] was pushing my head against the floor, I could feel a lot of pain to my head and neck and I couldn’t breathe properly. Some how I got away and on my feet, I said “get back boys, get out of the way”. The boys were in the lounge room.

    I went to the kitchen and [the Applicant] was following me, I was really scared so I grabbed a knife out of the chopping block and said, “Get the fuck out of my house”. I had the knife held in front of me and I used it to point towards the door and said “Get the fuck out of my house”.

    [The Applicant] either tackled me or grabbed my arm and knocked the knife out of my hand; he then knocked me back to the ground and had his hand around my throat. He wouldn’t let go of my neck and I couldn’t breathe. He was saying “I don’t believe you pulled a fucking knife on me”. I continued to kick and punch at him. He was still choking me, I could feel I was starting to black out. I managed to move my body and he lost his grip, but he was still on me, I could hear the kids crying and screaming. He grabbed hold of me again and I said, “I’m sorry, get off me”. [The Applicant] got up and walked out of the house”[23]

    [23] Exhibit 10, Remittal Bundle of Documents, Statement of a Witness, 1277-1283.

39. I note that in PD’s recent statement, dated 21 March 2023, she said of the Applicant:[24]

    [24] Exhibit 15, PD support letter 21 March 2023 1a[5-6].

    “Richard has never been convicted with any violent crime or any other violent crimes towards any partner, ex-partner, or any person he has been in a de-facto relationship with. Richard has never harmed any one of his children, family members or other members of the community.

    Richard has never committed nor been convicted for any violent related offences. The charges Richard was sentenced for was Richards first encounter with the Justice System. This is the first time Richard had ever been in the Correctional Justice system.
    The Charges he was sentenced for were not related to violent behaviour or violent crime, and he poses no threat to society or the public.

    Richards has shown he is remorseful for the crime he committed, Richard has had an extended period to reflect and learn from his past poor judgement and choices.
    Richard has learnt many valuable lessons and in particular the importance of his family and freedom and would never re-offend. Please refer to Appendix 1, Applicant statement of facts, issues and contentions 2022' pp 7 -9).

    “A) Richard's charges and conduct is not related to family violence.

    B) Richard is a calm, placid man who is in control of his emotions, feelings, and actions.

    C) Richard is not a violent man and has never been convicted for a violent offence.
    D) During the AAT process and hearing the member raised concerns about family violence

    E) The member raised an insignificant and unrelated historical incident that occurred between Richard and me in 2007. I gave verbal evidence at the AAT hearing in support of Richard and confirmed that Richard was not convicted.

    F) I answered all questions that the member asked, and I explained my recollections with regards to the minor incident.

    G) I also mentioned what triggered my actions and the reason I was very emotional at the time.

    H) We were both very emotional, as our separation was very hurtful for me, and I was living in hope that we would sort our issues out and continue our relationship,

    I) I was very upset and angry at the time which resulted in me pushing him.

    J) The incident was insignificant in my eyes and was dismissed, and Richard was not convicted with any violent offence.

    K) lt was an isolated incident. There has never been another altercation between us.

    L) Richard was never violent towards me or my children. Richard loves all his children they love him just as much. I have the utmost respect for Richard. He is a very good father, and no one can say otherwise.

    M) During the past years we have both learnt to be the best parents we can be, We overcome our separation and since then, Jodie and Richard have had a family and we are now a very strong and supportive blended family.”

1. This statement by PD is at best, very misleading. It makes untrue assertions. PD is obviously saying things, which she thinks will help the Applicant’s case. PD was not required to be called by the Respondent, so it was not possible to assess her credit as a witness in person. Based on her statement of 21March 2023 and the independently established facts, including her earlier contemporaneous July 2006 statement to police, I find that she is unreliable. I place little weight on any of her evidence unless it is independently supported.

2. The fact that the Applicant was not ultimately prosecuted or convicted, does nothing to change the fact of him having committed acts of family violence. He clearly was engaged with the justice system because of family violence. He conceded in his evidence, that this family violence also took place in front of his young children.

3. On 23 December 2006, the Applicant married JM.[25] They have three daughters.

   [25] Exhibit 10, Remittal Bundle of Documents , Birth Certificate, 369; Exhibit 10, Remittal Bundle of Documents , Marriage Certificate, 395.

4. On 2 January 2007, police records state:[26]

   [26] Exhibit 11, Supplementary G Documents, 19

   “The POI ( PD) is the ex-partner of VIC 2( the Applicant). VIC 1 ( JM) is the wife of VIC 2. The POI has 3 children as a result of his (her) previous relationship with the POI. VIC 1 is currently 15 weeks pregnant with VIC 2's child.

   During the past two years since VIC 1 has been in a relationship with VIC 2, the POI has been harassing VIC 1 on different occasions. At one point VIC 1 had to change her mobile number due to the POI continually ringing her. .

   About 11.30am on Tuesday 2nd January 2007, the POI picked up the children from VIC 2's mother's. Whilst the Children were with VIC 2 for the past 7 days CHILD 1 had a hair cut.. After picking up the children the POI attended Vic 1&2's address with the children in her car. The POI was seen by VIC 1 to take photograph's of VIC 1 & 2's vehicle parked outside their address..

   VIC 1 called VIC 2, who walked outside onto the balcony. The POI yelled out, "you fucking touch my son's hair again and see what happens." VIC 1 said, "said he wanted his hair cut." The POI said, “I’m going to kick that baby right out of your stomach.”

   VIC 1 & 2 ignored the POI and began to walk back inside when the POI said, "Watch out for your car." VIC 1 & 2 went inside and the POI left with her children.. Whilst the POI was yelling abuse at the VICs the children were in the car. CHILD 1 was seen to be sitting in the front seat with his head down, and did not look up. .

   VIC 1 & 2 attended Maroubra Police Station immediately after to report the incident. A statement was obtained from VIC 1 & 2.

   VIC 1 has fears for her safety and the safety of her unborn child.. A TIO was applied for and granted by Registrar ......... at Waverley Local Court for mention on 11/1/07..

   The POI was spoken to by police over the phone, with her admitting that she attended the VICs address over the CHILD l's haircut. The POI is currently away in Cootamundra for the week now due to return on the weekend. The POI informed police that she would contact them on her return.. A copy of the TIO given to DVLO & the victims.

5. From this account it appears that, both the Applicant and JM were the victims of family violence perpetrated by PD, in January 2007. This does not excuse the Applicant’s earlier behaviour, but it does perhaps give it some context.

6. On 16 February 2007, in the Waverly Local Court in New South Wales, the Applicant’s offence of Common assault-T2, arising from the events of July 2006, was dismissed.

7. In June 2007, the Applicant’s first daughter, Child A was born. She is now 16 years old.[27]

   [27] Exhibit 10, Remittal Bundle of Documents , Birth Certificate, 369.

8. In 2008, the Applicant purchased the “Flinders Inn” at Surry Hills with the intention that his brother would run the restaurant in his capacity as a chef. The business ultimately failed. The Applicant says that he borrowed substantial funds from criminal associates, to clear himself of the debt he incurred as a result of the failed business. As will be seen, this is a misleading, superficial gloss, on a much darker, more complex situation, involving drugs and gambling.

9. In January 2010, the Applicant’s second daughter, Child B was born. She is now 13 years old.[28]

   [28] Ibid, Birth Certificate, 373.

10. A letter dated 16 February 2011 from the “Metropolitan Local Aboriginal Land Council” states that PD has been confirmed as being of Aboriginal descent.[29]

    [29] Exhibit 13, Confirmation of Aboriginality.

11. In 2012, the Applicant pursued personal training more seriously and started operating his own full-time business from home.

12. Between 13 and 20 May 2013, the Applicant was involved in a conspiracy to import over 5 kgs of methamphetamine. He was also found to be in possession of other drugs and cash.[30]

    [30]  Annexure A, Statement of Agreed Facts, 15-32.

13. On 20 May 2013, the Applicant was arrested and charged with drug importation offences.[31]

    [31] Exhibit 10, Remittal Bundle of Documents , Chronology, 1558; Exhibit 5, Applicants Reply to Respondent’s Statement of Facts, Issues and Contentions, 18.

14. On 19 October 2014, a breach of bail warning was issued.[32]

    [32] Ibid, Breach Bail Alternatives report, 1226.

15. In  March 2016, the Applicant’s third daughter Child C was born. She is now 7 years old.[33]

    [33] Ibid, Birth Certificate, 372.

16. On 21 July 2016, the Applicant was convicted in the Downing Centre District Court of various serious drug trafficking offences. He was sentenced to 19 years imprisonment commencing on 30 January 2016.[34]

    [34] Ibid, Australian Criminal Intelligence Commission Check Results Report, 170; Ibid, R v McGlone, Richard; R v McKell, Jason Troy [2016] NSWDC 418, 171-209. See also Annexure A, Statement of Agreed Facts,10-14.

17. In October 2018, PD underwent surgery for a brain tumour.[35] Her son, MD, has acted as her carer.[36]

    [35] Ibid, Letter from Consultant Paediatrician, 383.

    [36] Ibid, 383-389.

18. In January 2019, JM was being treated for mental health issues. She was prescribed Quetiapine and Lexapro.[37]

    [37] Ibid, Medical Report, 409.

19. On 23 May 2019, the Applicant was released on bail and returned to the family home. He resumed work as a personal trainer.[38]

    [38] Ibid, Affidavit of JM, 405.

20. In a psychological report dated 12 July 2019, Ms Maria Tzoumacas says regarding the Applicant’s son MD:

    “I have been treating Mr [MD] for Post Traumatic Stress Disorder and ADHD since 2012 and Major Depressive Disorder since 2017.

    The deterioration in his psychological health in 2017 developed as a result of complex family issues as well as his mother’s critically ill health leading up to her brain surgery in October 2018. This acted as a catalyst for the decline in [MD’s] psychological health. He also struggled to engage consistently in therapy in 2018. This was due to the severity of his depressive symptoms. This was also complicated by the fact that he became his mother’s carer in 2018.

    As of January 2019, [MD] recommended attending therapy regularly and consequently recommended regular ADHD medication. He is actively investing time into bettering himself and his psychological health. [MD] has been taking considerable steps towards improving his psychological health over the course of this year. His family circumstances have improved along with his mother’s health and increased supports systems.

    It is my opinion that [MD] is now stabilised adequately to return to his studies in semester two. His mental health has improved along with his family circumstances. His carer obligations have decreased due to an increase of support by the NDIS.

    I believe his consistency in attending therapy is indicative if his commitment to bettering himself. I also believe [MD] has the capacity to successfully reattend his studies. His recent circumstances have significantly improved to allow for this.”[39]

    [39] Ibid, Letter From Maria Tzoumacas, 389.

21. In late August 2019, JM suffered a spinal injury during weight training.[40]

    [40] Ibid, Affidavit of JM, 404.

22. On 23 October 2019, the Applicant’s 21 July 2016 conviction was quashed by the NSW Court of Criminal Appeal and a retrial was ordered.[41]

    [41] Ibid, McGlone v R [2019] NSWCCA 252, 211-248. See also Annexure A, Statement of Agreed Facts,10-14.

23. On 30 January 2020, a breach of bail warning was issued.[42]

    [42] Exhibit 11, Supplementary G Documents, Breach Bail Alternative Report, 1226.

24. On 9 September 2020, JM underwent spinal surgery for decompression of a trapped nerve.[43]

    [43] Ibid, Medical Record, 411.

25. On 2 October 2020, a psychological assessment report was prepared by Ms. Alison Cullen, at the request of the Applicant’s solicitors. This report states that the Applicant self-reported as being of Māori descent. The concluding remarks of that report are as follows:

    “[The Applicant] is a 44-year-old male currently before the court in relation to Conspire to import commercial quantity of border-controlled drug, methamphetamine (5.6986 kg) between about 13 May 2013 and about 20 May 2013. He has no prior criminal history and has not re-offended since this time.

    The current assessment of [the Applicant] has revealed that his childhood transience, and associated disruptions during his formative social development (with the change of schools) as well as being subjected to bullying, likely predisposed him to poor confidence and in turn, enhanced his deep sense of loyalty. His poor confidence appears to have been compounded by the emotional and physical abuse he was subjected to in the home environment. Fortunately, he seemingly turned to sports which appears to have buffered him from longstanding psychological impacts associated with same. Nonetheless his limited confidence likely played a role in his decision to settle down with a woman 9 years his senior, when he was aged 19 years, and the volatility in their relationship was likely accepted as familiar to him (given the nature of his own parents’ relationship). It appears that [the Applicant] largely establishes and maintains (noble) confidence in a) his role as a father, following his separation from his former defacto at age 25 years, as evidenced by the active and interested role/s he plays in each of his children’s respective lives and b) identifying a vocational direction that is meaningful, promotes confidence and enables him to assist others.

    [The Applicant] has demonstrated his sense his loyalty and dependability throughout his adult life insofar as assisting his wife’s parents; his older three (3) male children, following separation from their mother; his brother; his mother; and more recently his nephew (while concurrently dealing with his own personal affairs). It appears that his loyalty to his brother, in particular, predisposed him to make decisions that resulted in financial ruin. During this time, [the Applicant] reports that he (and his wife) lose their family home and he becomes indebted to friends whom he borrowed money from, to avoid bankruptcy. It appears that his strong sense of loyalty, together with his reliance on substances (cocaine) and gambling perpetuated his psychological decompensation, such that his decision making would have likely been affected when the proposal was put to him to clear his debt. [The Applicant’s] choice of illicit drug (cocaine) likely provided him with a euphoric escape and boosted his confidence (as his poor confidence and self-doubt would have likely been retriggered during this period of time). It appears, therefore, that it was this aforementioned trajectory of factors that ultimately led to the index offence.

    As such, it appears that at the commission of the offence, [the Applicant] would have satisfied the following DSM-5 diagnoses:

    304.20 (FI4.20) Severe Cocaine Use Disorder

    312.31 (F63.0) Persistent Severe Gambling Disorder

    During his time served in custody and his release into the community, [the Applicant] reports (and there is no evidence to refute) that he reportedly abstained from drugs and gambling, thereby demonstrating promising rehabilitation prospects, as he is now considered to be in sustained remission. Further protective factors include: his significant contrition which is evidenced by the shame he has reported with respect to being perceived as similar to his own father (in relation to being absent) and detailing both the short-term and long-term impacts this has and will likely have on his six (6) children; the importance and emphasis he has demonstrated on fatherhood and the responsibility associated with same; his lack of prior criminal history; a consistent and strong work ethic coupled with a meaningful job; his longstanding community involvement; supportive relationships with his immediate and extended family units; stable accommodation; good physical health; the absence of any current psychopathology; a positive attitude towards and a willingness to seek psychological help if required; his motivation for self-insight and growth; a prosocial attitude; and non-criminal associates (including his long-term wife). These factors, coupled with the current psychometric assessment of [the Applicant’s] Level of Service Inventory, suggest that his risk of recidivism is low.

    It is likely that [the Applicant] will significantly psychologically decompensate if handed a lengthy custodial sentence, due to the probable impact this would have on all six (6) of his children and his wife, all of whom appear physically, emotionally and psychologically dependent on him. His fears regarding the psychological, physical, financial and emotional impact appears genuine in light of the marked impact his prior time in custody seemingly had on all of his children and his wife (who is now more dependent on him in light of her own physical limitations and needs) as well as the healthy, invested, and secure attachments/bonds he uniquely shares with each of his six (6) children.[44]

    [44] Ibid, Psychological Assessment Report,  425-426.

26. On 13 November 2020, the Applicant was convicted at a retrial of various drug offences including those associated with his part in the importation of 5.6986 kgs of methamphetamine between 13 and 20 May 2013. He was sentenced to imprisonment for a period of 7 years and 3 months, with a non-parole period of 4 years and 3 months.[45]

    [45] Ibid, Judge Pickering’s Sentencing Remarks, 276. See also Annexure A, Statement of Agreed Facts, 10-14.

27. The comments of Judge Pickering SC are relevant to understanding both the findings of fact and his view of the Applicant’s character. A statement of agreed facts was before his Honour. A copy is before the Tribunal.[46] His Honour’s remarks include the following:

    [46] Exhibit 11, Supplementary G Documents, NSW District Court Statement of Facts, 1512-1557.

    “As part of this negotiated plea, the facts were agreed. There were different facts prepared by the Crown in relation to both [the Applicant] and Mr [McK] but in reality, there was very little difference between them. It is now ten past three on Friday and I am doing this sentence at the end of a long day after a jury trial. I am not going to read out those lengthy statements of facts in each case or we will be here until six o’clock at night. I adopt those facts entirely as part of this judgment. They are agreed facts and I effectively find those facts in accordance with how they are tendered and prepared. I will simply outline in a much shorter form a very brief summary of those facts. It is not designed to replace those statements of facts in each of their cases.

    At the time of the offences, Mr [McK] was employed as a Movements Manager at Wymap Group, which provided freight forwarding and goods handling services. He resided in Waterloo and [the Applicant] resided in Bronte.

    As part of Joint Taskforce Operation Polaris, on 11 May 2013 the Australian Federal Police (AFP) commenced intercepting the phones used by [the Applicant] and in relation to that picked up the conversations with Mr [McK]. There is no evidence that Mr [McK] knew the identity of anyone else involved in the importation other than [the Applicant].

    On 13 May 2013, Mr [McK] and [the Applicant] met for a coffee. Shortly afterwards Mr [McK] contracted [AN], an employee of Wymap who worked under Mr [McK’s] supervision, asking him to check the arrival times of two consignments and asking for copies of air waybills. Later that day, Mr [McK] contacted [the Applicant] by SMS and used coded language to tell him that he was not sure when the two consignments would be arriving and arranged to meet the next day.

    At various times in the period of 15 May 2013 to 20 May 2013 Mr [McK] used his iPad to track the pseudoephedrine consignment and attempted to track the methamphetamine consignment. Mr [McK] and [the Applicant] also communicated both in person and via SMS regarding the status of both consignments.

    At approximately 8am on 20 May 2013 the pseudoephedrine consignment arrived in Sydney on board Malaysian Airways flight [redacted]. Around 8.18am police observed Mr [McK] and [the Applicant] met at a café, Two Baristas in Waterloo, and they recorded aspects of the conversation. Part of that conversation was as follows:

    Mr [McK]: Still nothing.

    [The Applicant]: (…) You reckon we got the wrong number?

    Mr [McK]: I reckon. That’s what I’m sayin, double check the number.

    [The Applicant]: (…) number, he didn’t even know about it. (…) number. (…)

    BA15 airline (…)

    Mr [McK]: Ohh there you go. [The Applicant]: Yeah

    Mr [McK]: Well that makes sense (…) Yeah.

    [The Applicant]: (…) BA (…) straight to Heathrow.

    The reference to “BA15” is a reference to the methamphetamine consignment which arrived the following day on board flight BA15 from Heathrow. Mr [McK] had attempted to track the methamphetamine consignment using his iPad but he used the incorrect air waybill number.

    Mr [McK] and [the Applicant] then moved on to discussing the pseudoephedrine consignment with Mr [McK] saying to [the Applicant] “It’s reported five minutes ago” and, “about twelve brother”.

    Shortly after that meeting, [the Applicant] attended Kennards Self Storage Facility Waterloo and purchased flat-pack cardboard boxes and two rolls of packing tape. At around 12:53pmMr Mr [McK] made a call to a truck driver from Wymap. Mr [McK] asked the driver not to put the consignment in his “PDA”, as Mr [McK] would be it transferring himself, and would meet the driver at his next port.

    At 1:20pm the driver rang Mr [McK] and told him that he had the boxes on the truck. At 1.33pm Mr Mr [McK] parked his blue Holden utility outside a business called “Hellmann Worldwide Logistics” and met with the driver. Both men unloaded boxes from the Wymap truck and placed them into the blue Holden and Mr [McK] drove away.

    It was at this stage that police intercepted the blue Holden in Alexandria about 1.42pm and located the pseudoephedrine consignment. Mr [McK] told the police that a friend named “Rick” had asked him to collect the boxes and deliver them to the Mr [McK] residence. The blue Holden contained various articles related to the pseudoephedrine consignment including plastic tubs containing a fine white powder which was analysed to contain pseudoephedrine.

    Mr [McK] initially denied knowledge of the tubs and their contents, but of course now he has accepted his involvement in this matter. As a result of that arrest, police took control of Mr [McK’s] phone and the blue Holden and substituted the pseudoephedrine consignment with similar boxes. Police then moved the blue Holden to the car park below the Mr [McK] residence. [The Applicant] sent a text message to Mr [McK] asking, “What time?” An AFP officer with control of Mr [McK’s] phone responded “Running a bit behind time, be there just after five”.

    [The Applicant] drove his white Holden utility to the car park at the Mr [McK] residence at 4.45pm. Police observed [the Applicant] lift the cover of the blue Holden, and look inside the rear tray. He was then arrested. That led to the various searches that located the cash that I had previously indicated. The next day the methamphetamine consignment arrived in Sydney. It is important to acknowledge that I am only sentencing, as I stressed, for the methamphetamine consignment. Much is made in the written submissions on behalf of the Crown of the role of an importer in sentencing in relation to s 16BA schedule.

    ……

    On six occasions over the course of a week Mr [McK] and [the Applicant] met to discuss and make arrangements in relation to both consignments. They instructed [AN], an employee, to make enquiries in relation to air waybill numbers for both consignments, and then Mr [McK] used his iPad on numerous occasions to track the progress of both consignments. He reported back to [the Applicant] about the enquiries he had made. He made a note on his iPhone of the incorrect air waybill number he had at the time for the methamphetamine consignment.

    In respect of the methamphetamine consignment, he entered into agreement with [the Applicant] to import methamphetamine into Australia. The agreed drug importation venture involved an agreement that [the Applicant] and Mr [McK] would deal with the methamphetamine by one or both of them taking possession of the consignment after it arrived into Australia and then arranging for the release of the consignment after it arrived into Australia for it to be collected and/or delivered to another participant in the conspiracy.

    ……

    It was submitted that Mr [McK’s] role did not require any great skill, in reality he simply passed on information. While clearly critical to the importation, having an interest in its success, his role is both limited and subservient to that of [the Applicant], who appears to provide Mr [McK] with the relevant information concerning air waybill numbers to track, and to whom Mr [McK] would ultimately deliver the drugs.

    I agree with those submissions except in one respect. I think it puts it too highly to say that he was completely subservient to [the Applicant] in a way that it makes it look like [the Applicant] look as though he is higher up the chain than Mr [McK], or more seriously involved or morally culpable than Mr [McK]. To me they really had a very similar involvement and it was difficult to see why I should accept that part of the submission.

    The mere fact that Mr [the Applicant] may have known other people involved in this particular drug operation does not necessarily put him higher up the chain in relation to this particular matter.

    ……

    Dealing with that role in relation to [the Applicant], his senior counsel submitted as follows. Mr [D] said that, in the present case – dealing with his client, [the Applicant] – there is no issue between the parties that the offender’s role in the offence was to communicate with Mr [McK], provide him with the air waybill number for each consignment and, pursuant to their agreement, it is apparent in this regard that the offender operated as a conduit between the organisers of the importation and Mr [McK]. There is no evidence that with respect to the methamphetamine importation the offender’s role extended beyond this to the collection of and/or dealing with the drug.

    He went on to say on behalf of [the Applicant] that there is no evidence that the offender had any proprietary ownership of the drug imported, nor any say in how it was to be dealt with and his role suggested to the contrary. He accepted the offender performed his role for financial gain, that is however almost always the case.

    Essentially, I again agree and accept the submissions of senior counsel on behalf of [the Applicant]. They are not really different to the Crown’s submissions and accepted as much by senior counsel in his written submissions at para 14.

    Dealing more specifically with the Crown’s submissions, they said in relation to Mr [the Applicant’s] actions that he exclusively used his phone service subscribed using false details to contact Mr [McK] using a code employed in communications. [the Applicant] used this phone to obtain air waybill numbers for both consignments and provide them to Mr [McK] and they met six times in the lead-up to this consignment being brought into Australia. [The Applicant] indicated that he had received an update on methamphetamine consignment from an unknown third party also involved in the importation some time on 20 May 2013 and with respect to the methamphetamine consignment entered into agreement with Mr [McK] to import methamphetamine into Australia.

    The agreed drug importation venture included an agreement that [the Applicant] and Mr [McK] would deal with the methamphetamine by one or both of them taking possession of the consignment after it arrived into Australia and arranging for the release of the consignment after it arrived into Australia such that it could be collected, delivered to another participant in the conspiracy.

    Again, there’s no suggestion that [the Applicant’s] role was going to be any further than that in relation to involvement of the importation. Again there is no evidence that he initiated the importation or that he was involved in the negotiation for the price of the drugs, in financing the purchase of the drugs or had knowledge of the specific quantity shipped – although he would have to have had more of an idea of the quantity than Mr [McK] did, even if just in a general sense.

    In relation to [the Applicant’s] role, the Crown submitted that the foregoing demonstrated that [the Applicant] played an essential role in the importation of the methamphetamine consignment. He provided the air waybill numbers to Mr [McK] in order to take possession of the consignments or make them available to the ultimate intended recipients. The Crown argued that he was in contact with members of the syndicate higher up in the hierarchy and was to able execute the substitution of the pseudoephedrine consignment before it was returned to the freight forwarders.

    [The Applicant] acted as sole contact point between Mr [McK] and the other unknown conspirators. As I have previously said, merely because [the Applicant] had contact with other people involved in this particular importation does not make his role higher than Mr [McK]. In my view, as I said, to me they really had – although different roles – really similar roles in terms of moral culpability.

    They were really at the coalface of getting the drugs into Australia and then facilitate moving the drugs to those who would make the real money in relation to this aspect.

    There is no point, in my view, in providing a label to try and explain what each role was. It is better just to focus on what I have already found each offender specifically did it.

    Again there were much submissions made about the weight of these drugs and the value of these drugs. There is little doubt that the methamphetamine was worth a lot of money in Australia, arguably into the millions of dollars, although these figures are always very rubbery and even with an expert there is a limit. The value of the drugs as a factor can be misleading too, because there is no suggestion that [the Applicant] and Mr [McK] were going to be the ones to receive those kinds of extraordinary profits at the end of it.

    Although it is accepted that Mr [McK] did not know the specific weights or purities involved, there is little doubt that he must have known that it was a significant consignment of drugs simply because of his involvement in that and his knowledge of his part of the role. [The Applicant] would have had a better idea but again would not have known the absolute specifics of the purity of the methamphetamine, let alone the pseudoephedrine on the schedule, and as I have said, that is not a matter I am sentencing for anyway.

    Although the High Court in Wong v The Queen (2001) 207 CLR 584 suggested that weight is not the only factor, it still remains a factor, particularly when you are talking about some degree of knowledge by both participants as to its weight and value. Ultimately there is still some relevance in considering the amount of drugs involved, which is significantly more than the commercial quantity which is 750 grams. Obviously 5.69 kilograms is substantially more than that, but as senior counsel on behalf of [the Applicant] submitted there is also no doubt that Courts deal with even larger importations than this, often in the tens of kilograms, in the hundreds of kilograms and sometimes into the tonnes. So while this was clearly a serious importation of a significant amount of methamphetamine, there are still many, many importations of larger amounts of drugs, and I accept of course many importations of lesser quantities of drugs.

    As the High Court stressed, the weight of the drugs is just a factor. It is far more important to look at the offenders’ roles and the moral culpability of what they did in the context of those roles. It is accepted on behalf of both offenders via their counsel that they clearly were doing it in order to make a profit.

    ……

    There is no doubt that offences like this of importing drugs into Australia require significant general deterrence. The community obviously is concerned about people who bring drugs into Australia and then distribute them into Australia. Anyone involved in these offences quite obviously faces the risk of high penalties. The fact that it carries life in this country reflects Parliament’s views that these matters are to be sentenced seriously.

    This however has been a difficult sentencing exercise in many ways because of the history that I have previously indicated, which I think has created a real unfortunate circumstance for both Mr [McK] and [the Applicant]. They have been subjected to lengthy periods of time already in custody. [The Applicant] has served three years and 114 days. Mr [McK] has served two years and 266 days.

    They are substantial periods of time but they do not tell the full story of the impact that moving in and out of custody had on them. After they were successful in their appeal they both ultimately received bail in relation to these matters and in both circumstances it has had a real impact on them and the way they move forward.

    ……

    [The Applicant] was represented on sentence by Mr [D] of senior counsel who also tendered a range of material on [the Applicant’s] behalf. Like Mr [McK], [the Applicant] has done much to rehabilitate himself since his sentence that was imposed by King J in relation to this matter. He likewise was effectively a model prisoner before being released on bail in relation to his successful appeal.

    He also has made efforts in custody to do everything he can to improve his education and the material before me shows he was very dedicated in his tertiary studies in custody. It is a credit to him that despite the fact that he did not even receive a fair trial and received a really harsh sentence, he actually made an enormous effort to educate himself and put himself in a better position upon his release rather than be bitter at the world about it, as he may have been.

    That was even more significant, because at that stage he likewise could have imagined himself in custody for another potential 11 years or more in relation to the sentence that he received. So it is to his utter credit that he took that sentence and worked so hard to make himself a more educated and a better person to come out on the outside.

    Since his release on bail he has lived up to that expectation, but he has been thrown some very difficult issues in relation to his home. His family, and his children in particular, have been thrilled to have him back in their lives. Not surprisingly they did it very tough while he was in custody, as many young families do when they lose their primary breadwinner, but also obviously the father of the children. Children of course are often innocent victims when people commit serious crimes, and unfortunately also the partners of people who commit serious crimes are equally victims. They have done nothing wrong, but they suffer significantly when their partner goes into custody.

    This much is true of the situation that has been faced by [the Applicant’s] wife, who has had to look after their young family and has struggled significantly financially while he was in custody. His family has been absolutely thrilled to have him back in their lives.

    She is particularly now even concerned more about what is going to happen if he goes back into custody again. She suffered a significant physical injury primarily to her back in the time that he has been out, and it is going to be more difficult for her in caring for the children if he is not around.

    In the material before me was an affidavit by [JM] in which she outlined the impact that this has had on her family; the incarceration, the impact of him going in and out of custody, and her spinal injury. There is little doubt, and I accept, that it will create significant hardship for her if he was to go back into custody because of both the financial pressures, the physical injuries she has suffered and the difficulty of raising three young children.

    Whether that hardship is exceptional is a matter for debate. It to me is unnecessary at times to look into too much detail about the concept of exceptional circumstances. The bottom line is that the impact that the offender being put into custody will always be relevant on sentence when there is going to be hardship to his family, as much as anything because of the psychological impact it would have on [the Applicant] in custody knowing that he cannot help his wife immediately and look after his children and the impact that he would know that it will have on his children.

    Whilst again, unfortunately, it is the reality for many people who commit serious offences that their wives and children suffer, here there is the additional factor of the spinal injury suffered by [JM]. It is an important factor in determining the appropriate sentence here. Likewise, there is no doubt that [the Applicant] has shown genuine remorse and contrition in relation to this matter. He has also put before me a lengthy letter in which he outlines his understanding of his involvement in this offence.

    He outlined that words will never be able to express how deeply sorry he feels for his involvement in the offence. He says:

    “These proceedings which have consumed my life for the past seven years have had the most profound effect on not only me, but my family. The direct result of my decisions I have caused enormous pain and heartache to my six children. This has carried over to my wife [JM], my niece, my nephews and my mother. I fear that the time I have already lost by not being there for my children during crucial times in their development has caused irreparable damage. Due to my actions I have been absent from my family when they needed me the most. This is the greatest shame and regret. This guilt is something I will carry around for the rest of my life. It weighs heavily on me and is something I think about on a daily basis”.

    He went on to outline how, when he was in custody, he tried to work as hard as he possibly could. It is notable that he was out at Wellington, which means he was even more isolated from his family but he made the best of that, in particular, as I said, in educating himself. He then outlined that when he got appeals bail in relation to this matter, apart from being a great feeling in his life, he then threw himself into his role of being a father and also in re-establishing his personal training business.

    It is clear again that he has been particularly dedicated as a father, as a student, as someone who is playing a positive role in society again. He again is someone – outside of the seriousness of this offending that he involved himself in – who is otherwise a person of good character who is capable of contributing much to society.

    Again, the material tendered to me on sentence shows exactly that. That outside of this offending he is someone who is mainly a family man and someone interested in working and looking after his family and being otherwise a good person.

    There is no doubt that delay in his case has allowed him to demonstrate that he is well on the path of rehabilitation. I think [the Applicant] has very positive prospects of rehabilitation. He is someone who wants to work and otherwise is interested in earning money in a legitimate way.

    This was also confirmed to me in the psychological assessment report tendered on his behalf from Alison Cullen. She outlined that again, a bit like Mr [McK], he was in a very different position in 2013 to where he is now. He likewise had monetary issues in relation to gambling but he also had some issues in relation to drug use that led to poor decision-making and his involvement here.

    She outlined the mental distress and impact on him being in custody has had on him during these lengthy criminal proceedings. She noted that in the circumstances of his being able to come back into the family, going back into custody will undoubtedly have a significant psychological impact on him, particularly because he has such great loyalty and dependability in his family.

    ……

    Like Mr [McK], I think [the Applicant] is highly unlikely to offend again in the future. I do not think specific deterrence has a significant role in his sentence and he, like Mr [McK], must have been quite shocked when he was sentenced by King J to think he would spend so much of his life in custody and basically not even see his children until they were nearly into adult age. I mean by that his three younger children, his other children are already effectively into adult age now.

    ……..

    But for [the Applicant] and Mr [McK] the reality is that when they chose to plead guilty here they obviously would have had to realise that there was a risk that they would go back into custody. After all, they knew the sentences that had been imposed by King J. They knew that there was a risk that they could receive a significant custodial sentence well in advance of what they had already served and that therefore there was a prospect that they would have to go back in.

    As I indicated to them on the previous time, although I have absolutely no intention of sentencing them anything like King J did, I did not make them any promises that I would agree with their counsels’ submissions that they had effectively served their non-parole period, and in fact I told them to expect the worst.

    I acknowledge as a sentencing judge that to put two men back in custody who are otherwise doing really well in rehabilitation and reforming themselves is a particularly difficult aspect to do, because it seems in some ways to be counterproductive to the concept of sentencing in relation to the importance of rehabilitation.”[47]

    [47] Ibid, Judge Pickering’s Sentencing Remarks, 249-274.

1. The Applicant gives his work history in his Personal Circumstances Form, dated 5 February 2021 as:

   “

Period		Occupation	Employer details (include name of company and telephone number, if available)
1/8/19	15/11/20	Personal Trainer	Self employed
1/1/11	1/7/16	Personal Trainer	Self employed
1/5/07	31/12/10	Restaurateur	‘Flinders Inn’ Self employed

” [48]

[48] Ibid, Richard McGlone and Minister for Immigration, Citizenship and Multicultural Affairs (2022), 51.

1. A letter of support from the Applicant’s son, KD, dated 7 February 2021 states, “My father is Richard McGlone and he is a Māori from New Zealand however he has lived here since he was very young.”[49]

   [49] Exhibit 10, Remittal Bundle, G Documents, Character Reference from Support, 379.

2. A revocation submission filed by the Applicant’s then representatives dated 10 February 2021, claims that the Applicant’s sons with PD are of aboriginal descent (through PD) but makes no claim of aboriginality on his behalf. [50]

   [50] Ibid, Revocation submission from Pathway Lawyers and Migration Agents, 321[5].

3. On 10 May 2021, the Applicant gave correctional services staff the following account of the circumstances of his offending:

   “D – [The Applicant] stated in 2009 he was working as personnel trainer with a mortgage with his partner [JM] who was pregnant, and had a one year old child to care for. [The Applicant] indicated he was approached by his eldest brother in regards to a business proposition of opening a restaurant in the Surry Hills Area as he was a chef and had strong connections in the industry. He stated [JM] was aware of the short comings of the business venture although remained supportive as she was aware of his brother’s attitude who is manipulative, and selfish witnessing previous episodes [the Applicant] has assisted his brother financially from failed ventures. [The Applicant] explained he committed approx $350,000 as an investment into the business believing the business could be successful and was sold the dream and the better life it could provide his family. [The Applicant] stated after 6 months he could see the business was struggling with his brother lacking commitment and loosing interest in the business venture with [JM] giving birth to their child. [The Applicant] expressed the strain and stress this placed on him as money was just evaporating appearing to be a huge money pit with his brother beginning to take days off work. [The Applicant] stated his financial woes increased and was required to sell his property in 2010 as he had a million dollar mortgage and with high interest rates, could not sustain the debts. [The Applicant] advised his drinking and drug use with cocaine became problematic increasing steadily over these periods. He said during arguments [JM] would bring up the failed venture which infuriated [the Applicant] wishing to stay at work for longer hours to escape the reality of his failed venture. [The Applicant] indicated he was living in bubble of his own ego and fantasies maintaining a lifestyle was contrary to his financial abilities as he was embarrassed attempting to live a life a deceit that he was successful. [The Applicant] stated his brother distant himself even further from the business with guilt settling in for [the Applicant] who couldn't let go of the dream not wishing for his family and friends to see he failed. [The Applicant] admitted the debts continued to increase with [the Applicant] using drugs and alcohol to mask his image amongst others. He stated he had friends with criminal backgrounds and was required to borrow a sum of money approx $150,000 off them to sustain the business acknowledging these people are not to be taken advantage of. [The Applicant] stated the business collapsed in 2011 and he had lost in excess of $750,000 with money still owed to suppliers, advising this was taking a toll of him and his relationship. [The Applicant] stated he is a proud man who tried to uphold an image even though he could not afford these items. [The Applicant’s] stated these friends who he borrowed money from approached and proposed with his knowledge of airport matters with friends and family involved requested he enquire with people of interest. [The Applicant] stated he agreed to the proposition as he thought it would be a quick fix, to restore his pride and regain finances lost with his failed venture. [The Applicant] claims he was working in the PT industry at the time of the offences with drug use still prolific.

   A - Managing Cravings, 3rd Party checks with wife.”[51]

   [51] Ibid, NSW Department of Corrective Services Case Note Report, 1703.

4. This statement omits any reference to the Applicant’s cocaine and gambling habits.

5. On 21 June 2021, the Applicant gave correctional services staff the following account of the circumstances of his drug use:

   “D – [The Applicant] stated although he was not using at the time of the offence his substance abuse played an instrumental role in his offending behaviour. He revealed substance abuse with cocaine and alcohol has been a prominent factor describing recreational use initially tuning into a problematic use. he stated the pressures of the business escalated his use indicating his triggers as financial, life stressors, alcohol, poor decisions, associations and environments. [The Applicant] claims his alcohol use would lead to his substance abuse describing as he was stressed with the business and financial obligations it was a coping mechanism for him. He indicated with his environment being in the Eastern suburbs his clients when personnel training would use describing this as a common practice. He claims his associations with his offence spoke to him about his substance abuse seeing it was becoming problematic and was concerned with his viability, revealing he ceased during this period. [The Applicant] stated he met his financial obligation however was spending the remainder on his substance abuse with no money left over. [The Applicant] advised on his release he needs support with his substance abuse acknowledging even though he has been abstinent with drugs his true test will the return to his environment with the external influences present. [The Applicant] stated he is confident remaining abstinent reflecting on the effect of his incarceration on his family. [The Applicant] advised he was studying a Business degree through the University of Southern Queensland completing approx 2 years however has deferred due to the financial costs as he is no longer eligible for Hex due to his immigration matters. [The Applicant] expressed his wishes to pursue the study recognising the positive direction the course provided confidence with his mental well being indicating this has been a life time struggle from a early age. [The Applicant] accepts responsibility for his actions not wishing to attribute blame upon others. he stated he has a lot of empathy for those that have substance abuse issues reflecting on his own personnel circumstances.

   [The Applicant] claims to have a strong family nucleus of his wife, mother, sister and children. He stated his mother resides with his wife providing support with [the Applicant’s] incarceration speaking to them on a regular basis. He stated his 3 boys from a previous relationship remain supportive living in close proximity with one of those in the family home with [the Applicant’s] wife along with his nephew.. [The Applicant] confirmed his importance of family.

   Discussed his relationship with his brother with [the Applicant] stating he has no contact describing him like his father self centred people with family loyalties only concern for themselves.

   A - Impacts of offending”[52]

   [52] Ibid, NSW Department of Corrective Services Case Note Report, 1705.

6. On 24 June 2021, the Applicant gave correctional services staff the following account of the circumstances of his offending:

   “R - Interview conducted with [the Applicant] via AVL. [The Applicant] was polite, appearing to give responses that were accurate and honest. It is evident [the Applicant] find it difficult to review his behaviour being the constant reminder of the effects to his family with his incarceration. [The Applicant] confirmed he maintains regular contact with his family and friends grateful for the ongoing support he has. I - PGI Impacts of offending Family - [The Applicant] spoke of his youngest child speaking of her feelings of abandonment from her father not being in there lives. He stated his eldest son have experienced hardship turning to substance abuse with him unable to provide the support needed. he stated the impacts to his family have not been seen as his girls to [JM] are young so the future will see any developments. Work - [The Applicant] spoke of his strong client base in the PT industry acknowledging clients have left his service vowing not to return due to his behaviour. He indicated on the other hand other clients have vocalised their loyalties to him and will return on his release. [The Applicant] appreciated these clients indicating he has fortunate to have people give him a second chance due to his offence and are not judgemental. Health - [The Applicant] stated the last part of his sentence has been extremely hard due to COVID resulting in restrictions of visitations and general communication. He spoke of the mental strain since 2013 to not only himself but also his family, although feels his mental and physical well being is at all time high. Money - Discussed the extreme pressures his family has endured indicating his mother left NZ to assist his wife with the children. he stated he is embarrassed his family assists with monetary assistance not only for there living but to provide support in the custody environment for him. He acknowledges the sacrifices his family and friends have made indicating he is forever grateful and will repay these people in the future. Friends - [The Applicant] stated you learn who your true friends are and the people who would associate with during the high times have abandoned him and his family leaving them to pick up the pieces. He indicated he is fortunate to have friends that weren't a major component when he was successful but have provided support to his family and him being totally unexpected. He stated this has been a valuable lesson and reminder of the important people in his life. Missed opportunities - Spoke of the birthdays, weddings, births, funerals missed with his incarceration discussing how he took these everyday events for granted. He stated events and mile stones with his children will be forever lost acknowledging the importance to their development. Partner - Identified his partner remains supportive since day 1. He confirmed his belief the incarceration has been harder for her identifying the struggles with keeping the family composed and together whilst dealing with financial hardships and not having her husband present. He expressed his time has been easy with only himself to take care of identifying her as his rock. Victims - Although there were no victims in the offence he explored the impacts if the items were to come in the community. He stated at the time of the offence he did not consider the potential victims using these substances learning from his children the true impacts to families of those using drugs. He stated at the time it was about financial gain recognising his selfish act. How I see Myself- He stated he was saddened , disappointed, and angry at himself for allowing this to happen and the effects on his family. He stated he has changed as a person who is more confident identifying the personal growth within himself with his incarceration. [The Applicant] identified goals he has for the future: Build his PT business to a reputable business with a strong client base Completion of his university studies make up for lost time with his family give back to the community purchase a property for his all of his family to reside at.

   A - managing environments”[53]

   [53] Ibid, NSW Department of Corrective Services Case Note Report, 1708.

7. By 20 July 2021, JM still had an incomplete recovery from her spinal surgery.[54]

   [54] Ibid, Neurosurgeon Letter to General Practitioner, 435.

8. A medical certificate dated 19 July 2022, report that Child A and Child B were suffering from “depressed mood, decreased appetite, anxious thoughts and self-harming behaviours.”[55]

   [55] Ibid, Medical Certificate, 701-702.

9. A medical certificate regarding Child B dated 21 July 2022 states:

   “Ms [MM] has recently begun an episode of care with the Adolescent Service at Prince Wales Hospital. She is currently undergoing a clinical diagnosis assessment with the service and the working diagnosis are a Major Depressive Disorder and Mixed Anxiety Disorder in the context of significant stressors. Specifically, the impact of her father being detained currently at Villawood Detention is adding further distress and significantly impacting [MM] and the rest of her family. [MM] is being seen by Dr Mariano Llosa (Child and Adolescent Psychiatrist) and Emma Cashman (Clinical Psychologist)”[56]

   [56] Ibid, Letter from Clinical Psychologist, 703.

10. On 22 October 2021, the Applicant became eligible for release on parole.[57] He was transferred to Villawood detention facility.[58] His parole period will extend to 22October 2024.[59]

    [57]Ibid, Justice Pickering’s Sentencing Remarks, 276; Ibid, Parole Order, 1200-1202.

    [58] Ibid, Department of Home Affairs Request for Service Form, 1193.

    [59] Ibid, Justice Pickering’s Sentencing Remarks, 276.

11. A Statutory Declaration was sworn by the Applicant’s son MD, who describes himself as an “Indigenous and Diversity Adviser” on 26July 2022. This makes no mention of the Applicant identifying as indigenous.[60]

    [60] Ibid, Statutory Declaration of Support, 624-626.

12. A Statutory Declaration sworn by the Applicant on 29 July 2022 in support of his then pending AAT application, refers to his sons as being “strong young indigenous men”, but makes no suggestion that he identifies as Indigenous.[61]

    [61] Ibid, Statutory Declaration of Applicant, 609-611.

13. On 24 August 2022, the Applicant’s reply to the Respondent’s SOFIC in the then pending AAT matter, makes no assertion of indigeneity.[62]

    [62] Ibid, Applicants Response to Respondents Statement of Issues, Facts and Contentions, 829-836.

14. On 1, 2 and 7 September 2022, this matter was heard by Senior Member Tavoularis of the AAT.[63]

    [63] Ibid, Transcript of Richard McGlone and Minster for Immigration, Citizenship and Multicultural Affairs (2022), 917-1119.

15. On 12 September 2022 the Tribunal affirmed the reviewable decision.

16. On 30 September 2022, the Tribunal published its written reasons for decision.[64]

    [64] Ibid, Richard McGlone and Minster for Immigration, Citizenship and Multicultural Affairs (2022) 1-101.

17. On 17 October 2022, the Applicant applied to the Federal Court of Australia for judicial review of the first AAT decision.[65]

    [65] Ibid, Richard McGlone and Minster for Immigration, Citizenship and Multicultural Affairs (2022), 1.

18. On 13 March 2023, Justice Perram of the Federal Court of Australia, issued an order quashing the Tribunal’s decision of 30 September 2022 and remitted the matter back to the Tribunal to reconsider and determine according to law.[66]

    [66] Ibid, Federal Court Remittal Order, 106-107.

19. In a Statutory Declaration dated 21 March 2023, PD describes herself as a “qualified indigenous Trauma and Recovery Practitioner”. She mentions her own identification as being of Aboriginal decent but makes no reference to the Applicant’s indigeneity.[67]

    [67] Exhibit 1, Statement of Facts Issues and Contentions, Statutory Declaration of PD, 277-289.

20. A letter dated 8 March 2023 from the “Coonabarabran Local Aboriginal Council” purports to certify that the Applicant “identifies as being an indigenous person and of Māori descent.” This statement is ambiguous. A Māori is an indigenous person in New Zealand. This letter of support then goes on to assert that the nature of the Applicant’s aboriginal connection, is his “adoption as a family member into ( PD’s) family”.[68]

    [68] Ibid, Cultural Letter of Support, 318-319.

21. A letter of support dated 10 March 2023 from “Redfern Youth Connect”, states that the Applicant has “three Aboriginal children all sons….as well as three other Indigenous children of Māori descent all daughters.”[69] I note that it is not asserted that his daughters are Aboriginal Australians by reason of his paternity, or otherwise. It is reasonable interpret the phrase “indigenous children of Māori descent” as a reference to their undisputed Māori ancestry. This is distinguishable from the reference to his adult sons, who are described as “Aboriginal children”.

    [69] Ibid, Redfern Youth Connect Letter of Support, 323-324.

22. On 2 April 2023, the “Stolen Generation’s Council (NSW/ACT) “wrote a letter of support. This letter describes the Applicant as “the father and grandfather of Aboriginal children”, by reason of his connection to PD. This letter invokes an emotive comparison between the Applicant’s case and “the Stolen Generations debacle”.[70]

    [70] Ibid, Stolen Generations Council Letter of Support, 320-322.

23. In a report of Tim Watson-Munro dated 11 May 2023, the Applicant reported that he was “half Māori and half Irish “. He also stated that he commenced smoking cannabis during his teenage years. He commenced using cocaine recreationally in his 30’s and following the failure of his business venture with his brother, his use of cocaine increased. For the reasons outlined above, this history may well be inaccurate, as it suggests that the business failure led to his drug taking. The facts suggest rather that his drug use and gambling, may have contributed to his debt problems. At his peak, he was using up to 0.7 of a gram of cocaine a day, usually five days a week.

24. In relation to alcohol, the Applicant would typically consume three or four glasses a wine. He stated he did not particularly like drinking alcohol given his father’s problematic history with alcohol.[71] In his evidence to the Tribunal, he conceded that alcohol use made him vulnerable to his other more serious temptations, such as gambling and substance abuse.

    [71] Exhibit 10, Remittal Bundle, NSW Department of Corrective Services: Conviction, Sentences and Appeals, 279.

25. He says that he commenced gambling in 2005, and between 2006 to 2007, he reports betting “big.” He would place 1 to 2 bets most weeks with upwards of $50,000 per bet.[72]

    [72] Ibid

26. Since being arrested, charged, and imprisoned, the Applicant states he has not consumed any drugs and that he is a recovered gambler. He reports that due to his gout he rarely drinks alcohol. He is regularly drug tested by choice and states they have all returned negative results.[73]

    [73] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, 11.            

27. In a letter of support dated May 2023, the Applicant’s son MD, makes no mention of his father being indigenous.[74]

    [74] Ibid, Letter of Support from MD, 306-308.

28. In a letter of support also dated 4 May 2023, the Applicant’s son KD, describes his father as being “of  Māori descent”. [75]

    [75] Ibid, Letter of Support from KD, 310-315.

29. In a letter of support dated 10 May 2023, the Applicant’s son DD, describes his father as being “ a Māori descendant”.[76]

    [76] Ibid, Letter of Support from DD, 300-305.

30. On 15 May 2023, the Applicant filed a SOFIC in this matter which stated, “I am a 47-year old Indigenous male born in New Zealand …and a citizen of New Zealand”. This claim of indigeneity, when read in the context of the rest of the document, seems to be referring to his Māori ancestry.[77]

    [77] Ibid, 4-33.

31. The Applicant has travelled overseas on many occasions according to the Respondent’s records.[78]

    [78] Remittal Bundle, Department of Home Affairs Movement History, 445-449.

32. The Applicant has worked and undertaken tertiary studies during his time in custody. He successfully completed the Tertiary Preparation Program which enabled him to enrol in an undergraduate degree in Business and Commerce through the University of Southern Queensland. He “strive[s] to improve my academic knowledge with view of improving my employment prospects.”[79]

    [79] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions,11.

1. The Applicant and his wife, JM, have been married since December 2006. He has three daughters with his wife, and three sons from his previous relationship with PD. He became a grandfather in March of this year. 

2. The Applicant’s three sons are of Australian (European), Aboriginal and Māori descent, and they are all over the age of 18 years. His role as their father has “always been very direct. I have always tried to be practical but also caring.”[80]

   [80] Ibid, Applicant’s Statement of Facts, Issues and Contentions, 28[169].

3. The Applicant’s three daughters are of Australian (European) and Māori descent. They are all minors. They have all suffered from the Applicant being absent. In particular, his middle daughter has suffered from psychological and mental distress. In her statement to the Tribunal, she described her distress as follows:

   I have had to go to several counselling sessions since Mid 2022. I was also put on medication, specifically Fluoxetine, an antidepressant, for my extremely low moods and the rendering image of waking up when I was younger and my dad not being there.[81]

   [81] Ibid, Applicant’s Statement of Facts, Issues and Contentions, Statement of Support, 297.

4. The Applicant has maintained contact with his daughters while he has been in Immigration Detention through telephone, facetime, and fortnightly visits.

5. In addition to his children, the Applicant’s parents, brother, nephew, and great-nephew all reside in Australia. He also has connections to PD’s family, consisting of her nieces, nephews, aunties, uncles and “over 30 cousins, who all live in Australia and are of Aboriginal descent.”[82]

   [82] Ibid, Applicant’s Statement of Facts, Issues and Contentions, Statement of Support , 301.

6. The Applicant submits that his physical health is very good. Over the past 10 years he has trained daily to “improve and maintain my general health and fitness.”[83] This is consistent with a psychological assessment report dated 2 October 2020, where he reported that his “resting heart rate is low 40s. I’m super fit. Very healthy. I take pride in my health and appearance. Training is a big part of my life.”[84] In that report, he stated he had issues with his hip but that it was manageable. He has been briefly knocked out once while boxing and 3 to 4 times while paying football but stated that his head injuries were “nothing too massive.”

   [83] Ibid, Applicant’s Statement of Facts, Issues and Contentions, 34.

   [84] Exhibit 10, Remittal Bundle, NSW Department of Corrective Services: Conviction, Sentences and Appeals, 280.

7. In relation to his mental health, the Applicant stated that his lengthy involvement with the criminal justice system and now the immigration system has significantly impacted upon his emotional state. He reported that his depression and anxiety have escalated given his exposure to the criminal justice system. He attributes his high levels of anxiety to the devastation his family would feel were he deported. As mentioned above, he has been diagnosed as having addiction issues with gambling and cocaine.

8. The Applicant spent his formative years in Australia. He stated that he has no support in New Zealand, although he has a sister there.

9. In a statement dated 21 March 2023, PD described the Applicant’s relationship with New Zealand as follows:

   “Richard has no physical memory or connection in any way to New Zealand as Australia has been his permanent and Native home since the age of 3 years.”[85]

   [85] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, Statement of PD, 277.

10. In a statement dated 4 May 2023, the Applicant’s son, KD, stated the Applicant would be alone were he deported to New Zealand:

    “He doesn’t have any friends there, his immediate family and all of us kids and his granddaughter live in Australia. Dad has not lived in New Zealand since he was young. Australia is his home, its all my family’s home.”[86]

    [86] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions, Statement of Support, 310.

11. If the Applicant were to be released into the community, he would return to live with his wife and daughters. He would seek employment, probably in the fitness industry. He says that he has good support networks with his family and friends. He says that he has severed his ties with negative influences. He wants to continue his education. He says that he will continue with rehabilitation courses.

12. The Applicant told the Tribunal that if he were returned to New Zealand, it “would break me and would break them. (his family)”

13. The Applicant has engaged the services of Gamblers Aware and Narcotics Anonymous. He attended 4 sessions at the Gambling Treatment Clinic, School of Psychology at the University of Sydney on 15 May 2023.

14. To “deal with historical gambling issues” the Applicant has engaged in one-on-one weekly counselling. This comprises an intensive 10-week programme which aims to help the Applicant understand his gambling history, the reasons why he used gambling as an outlet and provide him with a plan to ensure he does not gamble in the future.

15. To “address historical drug issues” he has sought help from Odyssey House Community Services in New South Wales. He has participated in group sessions comprising:

    (a)Session 1; Trigger, Fears, Barriers,

    (b)Session 2; Self Care and Protective Factors,

    (c)Session 5; Creating a Plan and,

    (d)Session 6; Experience of a Relapse.

16. In a letter before the Tribunal, Odyssey House wrote that the Applicant “participated well in all groups and is considered a value member of the group he has participated in.”

17. The Respondent pointed out that this flurry of activity post-dated his successful judicial review application. It was put to him that this was just done, to make him look better in the eyes of this Tribunal, by addressing deficits identified in his 2022 AAT case. He conceded that it looked like that, but insisted that his desire to seek treatment was genuine and born of a recent change in his attitude. He conceded that if he had been successful before the Tribunal in 2022, things might not have worked out so well, because he had not yet done these courses.

18. The Applicant “understand[s] that detention centres are ‘controlled’ environments” but that drug use within the detention centre is “out of control.” He submits that he has seen firsthand the insidious nature of drugs and how it affects other detainees. He claims to have last used alcohol 5 years ago and drugs 10 years ago.

19. The Applicant’s record of convictions is annexed hereto and marked “C”.

    LEGISLATIVE FRAMEWORK

    Does the Applicant Pass the Character Test?

20. The Applicant was sentenced by Pickering DJC to a term of imprisonment of 7 years and 3 months.

21. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether there is another reason why the original decision to cancel the visa should be revoked

    Is there another reason why the original decision should be revoked under section 501CA (4)?

22. In considering whether to exercise this discretion, the Tribunal is bound by section 499(2A) of the Act, to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[87]

    [87] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90, this in turn was replaced by Direction 99 on 3 March 2023.

23. For the purposes of deciding whether to refuse or cancel a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

24. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

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

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

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

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

    (5)With 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 noncitizen’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.

25. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

26. 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.

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

    a)Legal consequence of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

28. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[88]

    “…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[89]

    [88] [2018] FCA 594.

    [89] Ibid, [23].

    OFFENDING HISTORY

29. The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure C.

30. The Applicant has been involved in one very serious criminal offence. He was also engaged in drug trafficking on his own account.[90] This was discovered as an incidental consequence the drug importation investigation. The known facts suggest that this drug trafficking on his own account, was possibly much more extensive than the offending with which he was ultimately charged, and convicted. His lavish lifestyle and a serious gambling habit are indications of this. Both are inexplicable based on his legitimate income.

    [90] Ibid; Annexure A, Statement of Agreed Facts.

31. The Applicant conceded that he had refused to cooperate with police by naming other operatives higher up in the drug importation conspiracy. This remains so to this day. He initially told the Tribunal that he would still refuse to cooperate, even if he had his time over again, because his mother taught him not to “dob”. When asked by the Tribunal whether he realised that this attitude exposed the Australian community to the risk of further conspiracies, perpetrated by these same unnamed criminals, he accepted that this was so. He then said that on reflection, perhaps he would help police.

32. I note that notwithstanding this, he has still not provided any assistance to authorities. His position may have had greater credibility, if he had claimed to have had concerns for his safety or that of his family, if he helped. He made no such claim.

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

33. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

34. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

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

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

    The Nature and Seriousness of the Applicant’s Conduct to Date

35. 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 a number of factors. I will now turn to addressing these considerations.

36. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

37. The Applicant has engaged in very serious criminal conduct involving the importation of trafficable quantities of a prohibited drug. He has not cooperated with authorities because he did not want to “dob”. There is also his history of trafficking in drugs on his own account, independently of this event. The Applicant has conceded that this was at least partially motivated by greed.

38. The Applicant has also been involved in one recorded episode of violence against his former partner, PD.

39. This raises the issue of defining and applying the facts to the concept of “family violence”. This is also relevant to Primary Considerations 2 and 5. The Tribunal is required to consider whether the Applicant has been involved in acts of family violence. This has relevance because inter alia, in such a case, it is not necessary to consider whether there has been “a conviction for an offence or a sentence imposed”.[91] In the case of violent crimes against women who are not “family”, the Direction requires the Tribunal to consider the matter of “crimes of a violent nature against women or children, regardless of the sentence imposed”[92] This suggests that in the latter instance, a conviction is required, in the former it is not.

    [91] Direction 99, [8.1.1.1 (1)(a)(iii)].

    [92] Ibid, [8.1.1.1 (1)(a)(ii)].

40. Direction 99 defines “family violence” as follows:

    “family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

    a)    an assault; or

    b)    a sexual assault or other sexually abusive behaviour; or

    c)    stalking; or

    d)    repeated derogatory taunts; or

    e)    intentionally damaging or destroying property; or

    f)     intentionally causing death or injury to an animal; or

    g)    unreasonably denying the family member the financial autonomy that he or she would other wise have had; or

    h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

    i)   preventing the family member from making or keeping connections with his or her family, friends or culture; or

    j)   unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.”[93]

    [93] Ibid, [4 (1)(a)-(j)]. 

41. It can be observed from the start, that the notion of family violence as defined, is not necessarily analogous to, or coextensive with, the subject matter of every AVO. The two may frequently overlap or co-exist, but they are independent concepts.

42. The definition of family violence in Direction 99, appears to be copied from the relevant provision in section 4AB of the Family Law Act 1975 (Cth).

43. Unfortunately, Direction 99 does not define “family”, though it is quite expansive, indeed, open ended, in defining “violence”.

44. The question of defining “family” for this purpose was the subject of recent judicial interpretation in the case of Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115.[94]

    [94] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115.

45. This decision includes the following passages regarding Direction 90, which is identical to the current Direction 99 in this respect:

    “Paragraph 4(1) of Direction 90 contains a definition of “family violence” that refers to a “member of the person’s family”. But the Direction does not contain any definition of this expression or of the word “family”. Some assistance is provided by ss 5CB and 5G of the Migration Act, but these sections do not contain an exhaustive definition of a member of a person’s family. The expression “member of the person’s family”, as used in the definition of “family violence” in paragraph 4(1) of Direction 90, is to be construed having regard to its text, context and purpose. The context includes paragraph 8.2 of the Direction and ss 5CB and 5G of the Migration Act.

    It may be noted some statutory schemes define “family violence” in a way that includes violence against a person who is, or has been, an intimate partner: see, eg, the Family Violence Protection Act 2008 (Vic), s 8(1), which defines a “family member” in relation to a relevant person as meaning (among other things) “a person who has, or has had, an intimate personal relationship with the relevant person”. However, Direction 90 does not contain any equivalent or similar definition. The question is therefore left to be determined on the basis indicated above, namely by reference to the text, context and purpose of the expression “member of a person’s family”. We agree with the primary judge (at [156]-[157]) that the expression should not be narrowly construed and that it could extend (depending on the circumstances) to a person who is in an intimate relationship with the person.

    Insofar as the Tribunal referred to the violence committed by the appellant against his sister and considered this to be “family violence”, no issue arises. Plainly, the appellant’s sister was a member of his family and it was open to the Tribunal to treat the violence against her as family violence. The appellant does not contend otherwise.

    The difficulty arises because of the way the Tribunal dealt with the violence committed by the appellant against Ms S. At [104], the Tribunal stated that Ms S “was the [appellant’s] intimate partner, meaning his violence against her was an act of family violence”. As has been observed, the Tribunal appears to have proceeded on the basis that, because Ms S was the appellant’s intimate partner, she was therefore a member of his family for the purposes of the definition of “family violence” in paragraph 4(1) of Direction 90, with the consequence that the appellant’s violence against her was “family violence” for the purposes of the Direction. The difficulty is that the Tribunal did not expressly refer to the definition of “family violence” in paragraph 4(1) of the Direction and did not expressly consider whether or not Ms S was a “member of [the appellant’s] family” for the purposes of that definition. While Ms S may have been a member of the appellant’s family for the purposes of the definition of “family violence”, this was a contestable issue that needed to be considered. In the absence of any express consideration of this question in the Tribunal’s reasons, we are not satisfied that the Tribunal considered this question. In the circumstances, this constituted a failure to carry out the statutory task (noting that this is not precisely the way ground 2 is put). Further, the statement in [104] suggests that the Tribunal erroneously proceeded on the basis that, because Ms S was the appellant’s intimate partner, it followed that she was a member of his family for the purposes of the definition. This was an error of law. As the primary judge correctly held (at [157]), while the existence of an intimate relationship is relevant, it is not determinative of whether a person is a member of the person’s family for the purposes of the definition of “family violence”.

    It is true that, at [151], the Tribunal appears to have delineated between the violence committed by the appellant against his sister (which the Tribunal described as family violence) and the violence he committed against Ms S (which the Tribunal did not describe as family violence). If taken in isolation, this tends to suggest that the Tribunal was not treating Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 29 the violence against Ms S as necessarily constituting “family violence” as defined. However, the Tribunal’s reasons need to be read as a whole, and [104] contains a clear statement that the Tribunal regarded the violence against Ms S as family violence. Further, in the last sentence of [151], the Tribunal stated that it applied its earlier analysis, which may pick up the statement in [104].

    The primary judge reasoned, in essence, that it was open to the Tribunal to find that Ms S was a member of the appellant’s family for the purposes of the definition of “family violence” and that, in these circumstances, he was not satisfied that the Tribunal had misunderstood the applicable law. With respect to the primary judge, we consider that it was necessary for the Tribunal to consider whether or not Ms S was a member of the appellant’s family for the purposes of the definition, and the failure to do so constituted a failure to carry out its statutory task. Further, the Tribunal’s statement at [104] bespeaks error, for the reasons given above.

    Insofar as the primary judge considered that the Tribunal used the expression “intimate partner” as a shorthand expression for a person who fell within the concept of a “member of the person’s family”, we respectfully consider that this is not clear from the Tribunal’s reasons. In circumstances where the Tribunal did not refer to the definition of “family violence” or address whether or not Ms S was a member of the appellant’s family for the purposes of the definition, it is not possible to know whether the Tribunal used the expression “intimate partner” in that way

    We are satisfied that the Tribunal’s error was material. The Tribunal had regard to its finding that the appellant had committed “family violence” in its assessment of three of the four primary considerations: see [104], [151] and [176]. Given the particular weight that was required to be given (by the Direction) to “family violence”, it is possible that, if the Tribunal had reached a different view as to whether the violence against Ms S constituted “family violence”, it may have reached a different overall conclusion. The primary judge found that if (contrary to his view) there was an error, the error was material, and the Minister did not contend otherwise.”[95]

    [95] Ibid [123]-[130].

THE APPLICANT’S HISTORY

The Applicant’s Convictions and Sentencing

10The Applicant's Check Results Report dated 14 December 2020 records the following offences and court results in respect of the Applicant.⁹

⁴ Remittal Bundle, pages 152-168.

⁵ Remittal Bundle, pages 149-151.

⁶ Remittal Bundle, pages 141-148.

⁷ Remittal Bundle, pages 1-105.

⁸ Remittal Bundle, pages 106-108.

⁹ Remittal Bundle, pages 169-170.

Court	Date	Offence	Result
Downing Centre District Court	13 November 2020	Joint commission import/export commercial quantity border controlled precursors	Convicted. No further penalty imposed.
Downing Centre District Court	13 November 2020	Conspiracy import/export commercial quantity of border controlled drugs/plants	Convicted Imprisonment: 7 years and 3 months Commence: 23 July 2017 (Methamphetamine)
Downing Centre District Court	13 November 2020	Dealing with proceeds of crime $10,000 or more	Convicted. No further penalty imposed.
Downing Centre District Court	21 July 2016	Joint commission import/export commercial quantity of border control precursors	Convicted Imprisonment: 16 years Commence: 30 January 2019 Total effective sentence imprisonment 19 years to date from 30 January 2016 (pseudoephedrine) Note: conviction quashed,10 and the Applicant was re-sentenced on 13 November 202011
Downing Centre District Court	21 July 2016	Conspiracy import/export commercial quantity of border controlled drugs	Convicted Imprisonment: 10 years Commence: 30 January 2017 Total effective sentence imprisonment 19 years to date from 30 January 2016 (Methamphetamine) Note: conviction quashed, and the Applicant was re-sentenced on 13 November 2020
Downing Centre District Court	21 July 2016	Dealing with proceeds of crime $10,000 or more	Convicted Imprisonment: 5 years

¹⁰ Remittal Bundle, pages 211-248.

¹¹ Remittal Bundle, pages 249-278.

Commence: 30 January 2016 Total effective sentence imprisonment 19 years to date from 30 January 2016 Note: conviction quashed, and the Applicant was re-sentenced on 13 November 2020
Waverley Local Court	16 February 2007	Common assault	Dismissed

11The Applicant was consequently convicted of:

(a)an offence of conspiring to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth), being 5.6986 kilograms of methamphetamine;

(b)a joint commission offence of importing commercial quantity of a border controlled precursor, being 63.1771 kilograms of pseudoephedrine contrary to ss 11.2A and 307.11(1) of the Criminal Code 1995 (Cth); and

(c)a charge of deal with money or property believed to be the proceeds of crime of $10,000 or more contrary to s 400.6(1) of the Criminal Code 1995 (Cth), being an amount of $42,550.¹²

12The first offence is punishable by imprisonment for life or 7,500 penalty units, or both; the second offence is punishable by imprisonment for up to 25 years or 5000 penalty units, or both; and the third offence is punishable imprisonment up to 10 years or 600 penalty units, or both.¹³

13On 13 November 2020, the Applicant was sentenced to his current sentence of imprisonment 7 years and 3 months by Pickering DCJ (Pickering Sentencing Judgment),¹⁴ having been previously sentenced to a term of

¹² Remittal Bundle, pages 169-170, 249, 1504.

¹³ Remittal Bundle, page 1504.

¹⁴ Remittal Bundle, pages 249ff.

imprisonment of 19 years by King DCJ (King Sentencing Judgment).¹⁵

14The Applicant’s 2016 conviction was quashed by the Court of Criminal Appeal of NSW in McGlone v R [2019] NSWCCA 252¹⁶ following Mr McKell’s successful appeal to the High Court in McKell v The Queen [2019] HCA 5; (2019) 93 ALJR 309, for the reason that the “the trial judge’s Summing-Up at the joint trial of the appellant and co-accused was ‘so unfair in its lack of balance that a miscarriage of justice occurred’”. No comment was made by the High Court about any part of the King Sentencing Judgment itself. Due to the quashing of the conviction, the sentence imposed by King DCJ was set aside. The Applicant was subsequently retried. The Crown subsequently made the Applicant an offer, which led the Applicant pleading guilty to the offences, resulting in his re-sentencing by Pickering DCJ.

THE 2013 OFFENDING

15The Applicant’s convictions were a consequence of the Applicant’s involvement in importing commercial quantities of controlled drugs and precursors.

16The Applicant, along with other accomplices, notably a Mr Jason Troy McKell (Mr McKell), imported a total of 63.1771 kilograms of pseudoephedrine, and 5.6986 kilograms of methamphetamine, which arrived in Australia on 20 May 2013 and 21 May 2013 respectively.¹⁷

17The Applicant was involved in a very sophisticated and well resourced criminal enterprise to import substantial quantities of border controlled precursor and drug into Australia.¹⁸

18That enterprise required the establishment of a system to abuse customs procedures, requiring not simply a knowledge of the procedures, but the participation of a person in authority who was able to direct other persons to comply with breaches of the under bond customs transport system to enable removal of the substances from the system.¹⁹

¹⁵ Remittal Bundle, pages 172ff.

¹⁶ Remittal Bundle, pages 211ff.

¹⁷ Agreed Facts on Sentence at [1]-[2]; Remittal Bundle, page 1537.

¹⁸ King Sentencing Judgment at [10]; Remittal Bundle, page 196.

¹⁹ Ibid.

19That system was arranged prior to the investment of substantial funds to allow the purchase of the substances overseas and air transport.²⁰

20The consignments originated from a number of different international sources, including Chile, Bangladesh and Abidjan, a city in the Ivory Coast. ²¹

21The Applicant's role in the enterprise, specifically, involved the following:

(a)“Used the 0450134687 phone service subscribed in false details exclusively to contact McKell. A code was employed in the communications dealing with the consignments”;

(b)“Obtained the AWB numbers for the three consignments and provided them to McKell”;

(c)“On at least six occasions over the course of a week, meet with McKell to discuss and make arrangements in relation to the three consignments”;

(d)“Obtained the correct airway bill number from Consignment 3 from an unknown third party also involved in the importation at some time on 20 May 2013, making handwritten note of the number”;

(e)“Used a utility registered in the name of a third party, Carlos Fratti, in connection with Consignment 2”;

(f)“Obtained pails and stickers identical to those within Consignment 2 filled with an inert substance in order to substitute them for the precursor in Consignment 2 and return the consignment to an under bond warehouse without being detected”;

(g)“Purchased packing tape, implements and boxes to facilitate the substitution of Consignment 2”;

(h)“Drove to McKell's basement car park with the substitute boxes and pails with the intention of taking possession of the contents of Consignment 2”; and

(i)"With respect to Consignment 3, entered into an agreement with McKell

²⁰ Ibid.

²¹ Ibid.

to import methamphetamine into Australia”.²²

22The Applicant’s role in the offence was to communicate with Mr McKell, provide him with the air waybill number for each consignment and, pursuant to their agreement, operate as a conduit between the organisers of the importation and Mr McKell. The Applicant acted as sole contact point between McKell and the other unknown conspirators. The Applicant and his conspirators were “at the coalface” of the system.²³

23The Applicant was the one to approach and recruit Mr McKell, as a contact at the airport who was a manager at a freight company, into the criminal conspiracy, after he was instructed to “go and find someone who is willing to participate”. Thereafter, the Applicant acted as Mr McKell’s contact or “go- between” between Mr McKell and the heads of the conspiracy, between whom he would relay information.²⁴

24Of the goods imported:

(a)the 63.1771 kilograms of pseudoephedrine had a black market value of

$5,670,000²⁵ and could be used to produce 42.654 kilograms of Methylamphetamine Hydrochloride (or ‘Ice’) with a street value of between $8,530,800 to $11,090,040;²⁶ and

(b)the 5.698 kilograms of Methylamphetamine Hydrochloride would have a black market value of between $1,139,600 and $1,481,480.²⁷

25When the Applicant’s home was searched by police, the police found $4,000 (AUD) within the walk-in-wardrobe of the main bedroom and $38,550 (AUD) within a blanket box in the main bedroom.²⁸

26The police also found:

²² King Sentencing Judgment at [50]; Remittal Bundle, pages 201-202.

²³ Pickering Sentencing Judgment; Remittal Bundle, pages 254-263, especially at 261 and 263.

²⁴ Transcript of First Tribunal Hearing (T) 34.43-35.30; Remittal Bundle, pages 950-951.

²⁵ Statement of DSC Gary Bell at [36]; Remittal Bundle, page 1553.

²⁶ Statement of DSC Gary Bell at [44]; Remittal Bundle, page 1555.

²⁷ Statement of DSC Gary Bell at [48]; Remittal Bundle, page 1556.

²⁸ Agreed Facts on Sentence at [44]; Remittal Bundle, page 1542.

(a)18 clear plastic bags, each containing 1 gram of white powder of which 46.5% was pure cocaine located in envelopes visibly protruding from a jewellery box on the female side of the wardrobe;

(b)5 tablets in a clear plastic bag containing 2C-B, a psychoactive drug with effects similar to MDMA, located on the male side of the wardrobe;

(c)Tanita brand electronic scales in the cupboard which subsequently returned a positive result for traces of cocaine.²⁹

27The Applicant acquired the money from selling cocaine, and were proceeds of crime.³⁰ The Applicant further intended to sell the 18 clear plastic bags of cocaine.³¹

28There is not a separate conviction against the Applicant for the sale of the cocaine, other than the conviction for possession of the $42,550 as proceeds as crime.

29The Applicant’s involvement was part of an ongoing involvement in the drug trade, as demonstrated by:

(a)the large amount of cash located at his premises;

(b)the high patterns of personal spending above his legitimately earned income, comprising car, holiday and housing expenses;

(c)the cocaine pills and scales contaminated with traces of cocaine located at the Applicant’s address; and

(d)the coded communication between the Applicant and Mr McKell using phones registered in false names over a period extending potentially up to 12 months before their arrest.³²

²⁹ King Sentencing Judgment at [107]; Remittal Bundle, page 194.

³⁰ T36.28-37; Remittal Bundle, page 952.

³¹ T38.19-27; Remittal Bundle, page 954.

³² King Sentencing Judgment at [73]; Remittal Bundle, page 206.

30The Applicant’s offending was motivated by considerations of financial gain³³ (including gains on top of the repayment of debts)³⁴ and out of a desire to maintain his lifestyle through the sale of drugs.³⁵

31The Applicant concealed his 2013 criminal conduct from his wife, as well as his sales of cocaine.³⁶

32As a result of the offending, the Applicant does not pass the character test for the purposes of s 501CA(4)(b) of the Act.³⁷

THE 2006 INCIDENT

33On 14 July 2006, there was an incident between the Applicant and Ms [First name] Dowd, his former de-facto partner and the mother of three of his children.

34The Applicant and Ms Dowd, who was 39 at the time, had separated in 2002.

35On 14 July 2006, the Applicant came over with his children to Ms Dowd’s home to have their “christening papers” signed at about 10:30am.³⁸

36There was an argument about the address being put on the forms and the Applicant’s new girlfriend, which became heated. The Applicant started calling Ms Dowd “a slut, nothing but a slut” in front of the three children.³⁹

37The argument continued and Ms Dowd became upset. The Applicant and Ms Dowd headed towards the front door and continued to argue. This culminated in Ms Dowd telling the Applicant to “get out of my home” and pushed him with an “open palm around his shoulder” to get him out. The Applicant said something like (Ms Dowd could not “recall exactly”) “[d]on’t fucking hit me again

³³ Applicant’s Statement of Facts, Issues and Contentions filed 15 May 2023 (ASFIC) at [74], page 14.

³⁴ T71.44-72.5; Remittal Bundle, pages 987-988.

³⁵ T37.38-46; Remittal Bundle, page 953.

³⁶ T39.18; Remittal Bundle, page 955. T84.20-29; Remittal Bundle, page 1000.

³⁷ ASFIC, page 8.

³⁸ Ms Dowd’s statement to police dated 14 July 2006 given at Prince of Wales Hospital (Remittal Bundle, pages 1277-1283) (Dowd Statement) at [4].

³⁹ Ibid at [5].

or something will happen”.⁴⁰

38The Applicant grabbed Ms Dowd by her arm and her throat and pushed her up against the pane of glass by the front door. Then Ms Dowd ended up on the ground and the Applicant put one of his hands around her throat. Ms Dowd kicked and thrashed trying to get away. The children were crying and screaming “No dad, stop”. Ms Dowd yelled to Djanni, one of the children, to call the police. The Applicant pushed Ms Dowd’s head against the floor. Ms Dowd could feel a lot of pain to her head and neck and could not breathe properly.⁴¹

39Ms Dowd went to the kitchen. Ms Dowd was “really sca[r]ed” and so she grabbed a knife out of the chopping block, repeating “Get the fuck out of my house”.⁴²

40The Applicant either tackled Ms Dowd or grabbed her arm and knocked the knife out of her hand. The Applicant then knocked Ms Dowd back to the ground and put his hand around her throat. The Applicant would not let go of Ms Dowd’s neck and she could not breathe. The Applicant said "I don't believe you pulled a fucking knife on me". Ms Dowd continued to kick and punch at him. The Applicant continue to choke her. Ms Dowd could feel that she was starting to black out. Ms Dowd managed to move her body and the Applicant lost his grip, but he was still on her. Ms Dowd could hear the children crying and screaming. The Applicant grabbed hold of Ms Dowd again and Ms Dowd said "I'm sorry, get off me". The Applicant got up and walked out of the house.⁴³

41At 11:40am, Constables McGinty and Christie arrived at the house and met Ms Dowd at the front door. Constable McGinty immediately noticed that “Ms Dowd appeared to have been crying, her eyes were blood shot and I could see tears on her face” and “her throat area appeared to be very red compared to the rest of her face and shoulders”. Ms Dowd “appeared very upset as she found it difficult to speak, her hands were shaking and conversation was difficult as she was unable to focus on a particular subject.”⁴⁴

⁴⁰ Ibid.

⁴¹ Ibid at [6].

⁴² Ibid at [7].

⁴³ Ibid at [8].

⁴⁴ Statement of Constable Graham McGinty dated 8 September 2006 (McGinty Statement) at [4]; Remittal Bundle, pages 1250-1253.

42Constable Christie saw that Ms Dowd was “crying and had a swollen, red mark and a number of small scratches to the right hand side of her neck and throat.”⁴⁵

43Ambulances were summoned to assess the injuries to Ms Dowd’s neck.⁴⁶

44It was decided that Ms Dowd should attend Prince of Wales Hospital to see a doctor regarding her injuries.⁴⁷

45It was there that Constable McGinty, at 1.40pm that day, attended Ms Dowd and obtained her statement.⁴⁸

46Following this, Constable McGinty, as complainant, sought for an apprehended violence order to be made against the Applicant in respect of Ms Dowd as a protected person.⁴⁹

47Consequently, interim apprehended violence order was made against the Applicant on 14 July 2006, 17 August 2006, 23 August 2006, 27 September

2006, 4 October 2006 and 16 February 2007.⁵⁰

48A common assault charge was brought against the Applicant but dismissed.⁵¹

49Ms Dowd as the Applicant’s former de facto partner and the mother of three of the Applicant’s children was a “member of the person’s family”, as defined in s 4 of Direction No 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA dated 23 January 2023 (Direction 99).

50The conduct of the Applicant on 14 July 2006 was “violent”, “threatening”, and was “other behaviour” that “coerced or controlled” Ms Dowd and caused Ms Dowd “to be fearful”.

⁴⁵ Statement of Constable Toby Christie dated 23 July 2006 (Christie Statement) at [3]; Remittal Bundle, pages 1254-1255.

⁴⁶ McGinty Statement at [5]; Remittal Bundle, page 1251.

⁴⁷ McGinty Statement at [7]; Remittal Bundle, page 1251.

⁴⁸ McGinty Statement at [9]; Christie Statement at [5].

⁴⁹ Remittal Bundle, pages 1272-1276.

⁵⁰ Remittal Bundle, pages 1264-1267, 1288-1289.

⁵¹ Remittal Bundle, page 170.

51The conduct of the Applicant on 14 July 2006 constituted an “act of family violence” for the purposes of 8.1.1(1)(a) of Direction 99.

OTHER MATTERS

52The Applicant accepts that the minimal therapy and online courses he participated in whilst in detention were not up to standard and could not be considered as a serious attempt to rehabilitate his historical issues with drugs and gambling.⁵² While in detention, the Applicant has taken part in external gambling and drug rehabilitation programs, specifically gambling treatment programs provided by Gamble Aware and relapse prevention program offered through Odyssey House.

53As a citizen of New Zealand, the Applicant would have the same access to social, medical and economic support as other citizens.

54There is no apparent impediment to him finding adequate employment in New Zealand (notwithstanding his criminal record), noting that the Applicant has engaged in employment in Australia as a self-employed personal trainer, which is an occupation that can be easily transferred and utilised in New Zealand.

55There are no language or cultural barriers for the Applicant to overcome in New Zealand.

56The Applicant has lived in Australia for over 43 years, arriving in Australia at the age of 4.

57The Applicant has ties to Australia; the most obvious being his wife Jodie, his children Djanni, Maia, Kahi, [redacted], [redacted], [redacted], and his granddaughter [redacted].

58The Applicant’s wife, former partner, and children are otherwise all of Australian indigenous heritage.

27 September 2023

⁵² AFSIC at [19], page 3.

Annexure B – List of Exhibits

Exhibit no.	Lodged by	Document
1	Applicant	Statement of Facts, Issues and Contentions
2	Applicant	SOFIC Annexure 6.1 Statutory Declaration of JM(13.05.2023) *Partial document included in SOFIC lodged 15.05.2023
3	Applicant	SOFIC Annexure 6.5 Letter from KBM(11.05.2023) *Partial document included in SOFIC lodged 15.05.2023
4	Respondent	Statement of Facts, Issues and Contentions
5	Applicant	Applicant’s Reply to Respondent’s Statement of Facts, Issues and Contentions
6	Applicant	Supplementary Statement of Facts, Issues and Contentions
7	Respondent	Respondent’s Reply to Applicant’s Statement of Facts, Issues and Contentions
8	Respondent	Respondent’s Consolidated Statement of Facts, Issues and Contentions
9	Respondent	Statement of Agreed Facts
10	Respondent	Remittal Bundle
11	Respondent	Supplementary G-Documents
12	Applicant	Bundle of Documents: 12.1 Support Letter from Chairperson of Coonabarabran Local Aboriginal Land Council Naomi Stanton (08.03.2023) 12.2 Support Letter from Executive Director, Margaret Haumono (10.03.2023) 12.1 12.3 Support Letter from Applicant’s ex-partner, PDto the Hon. Clare O’Neil MP (21.03.2023) – with Appendixes Appendix 1 – Applicant’s Statement of Facts, Issues and Contentions (29.07.2022) Appendix 2 – Applicant’s Prison Case Notes Support Letter from Chairperson of the Stolen Generations Council NSW/ACT, Richard Dawes to the Hon. Clare O’Neil MP (02.04.2023) Character Reference from Applicant’s friend Trayden Miller-Mundine (21.03.2023)
13	Applicant	Birth Certificate of Applicant’s granddaughter, Nikkidi Sumayyah Dowd and Confirmation of Aboriginality
14	Applicant	Statement of Position as per Direction on 20.06.2023
15	Respondent	Bundle of Documents: Email 1 15.1 Email dated 23 March 2023 from Applicant’s ex-partner, Ms Paige Dowd, to Minister Burney attaching: (a)   Statement of PD dated 21 March 2023 (which can be found at 6.2 of the Applicant's SFIC index); (i)      Appendix 1 to Paige Dowd’s statement is the Applicant’s statement of facts, issues and contentions dated 29 July 2022 (which can be found at 6 of the Respondent's Remittal Bundle) (ii)      Appendix 2 to Paige Dowd’s statement is a selection of prison case notes (which can be found at 6.2(a) of the index); (b)   Letter from Naomi Stanton, Coonabarabran Local Aboriginal Land Council dated 8 March 2023 (which can be found at 7.1 of the index); (c)   Orders of Justice Perram dated 13 March 2023 (which can be found at 2.1 of the index); (d)   Letter from Margaret Haumono, Redfern Youth Connect dated 10 March 2023 (which can be found at 7.3 of the index). Email 2 15.2  Email from Ms PD dated 28 March 2023, to Minister Burney attaching a letter from Trayden Miller-Mundine dated 21 March 2023 (which can be found at 6.9 of the index). Email 3 15.3  Email from PD dated 3 April 2023, to Minister Burney attaching: (a)   Letter from Richard Dawes, Stolen Generations Council dated 2 April 2023 (which can be found at 7.2 of the index); (b)   Orders of Justice Perram dated 13 March 2023; (c)   Listing Notice from the Tribunal dated 31 March 2023; (d)   Tribunal directions by SM Rau SC dated 11 April 2023. Email 4 15.4   Email from PD dated 4 April 2023, to Minister O'Neil attaching: (a)   Ms PD’s statement dated 21 March 2023 attaching: (i)    Appendix 1 to her statement is Mr McGlone's statement of facts, issues and contentions dated 29 July 2022 (ii)   Appendix 2 to her statement is a selection of prison case notes; (b)   Letter from Naomi Stanton, Coonabarabran Local Aboriginal Land Council dated 8 March 2023; (c)   Orders of Justice Perram dated 13 March 2023; (d)   Letter from Margaret Haumono, Redfern Youth Connect dated 10 March 2023; (e)   Letter from Trayden Miller-Mundine dated 21 March 2023; (f)    Letter from Richard Dawes, Stolen Generations Council dated 2 April 2023; (g)   Listing notice from the Tribunal dated 31 March 2023; Tribunal directions by SM Rau SC dated 11 April 2023.

Annexure C – Applicant’s Offending History

Court	Court Date	Offence	Court Result
Waverley Local Court	16/02/2007	Common assault – T2	Dismissed
Downing Centre District Court	21/07/2016	Dealing with proceeds of crime $100,000 or more	Convicted Imprisonment: 5 years Commence 30 January 2016 Note: Conviction quashed and the Applicant was re-sentenced
Downing Centre District Court	21/07/2016	Conspiracy/Import/Export Commercial Quantity of Border Control Drugs	Convicted Imprisonment: 10 years Commence 30 January 2016 Total effective sentence imprisonment 19 years to date from 30 January 2016 (pseudoephedrine) Note: Conviction quashed and the Applicant was re-sentenced on 13 November 2020
Downing Centre District Court	21/07/2016	Joint Comm/ Conspiracy/Import/Export Commercial Quantity of Border Control Precursors	Convicted Imprisonment: 16 years Commence 30 January 2016 Total effective sentence imprisonment 19 years to date from 30 January 2016 (pseudoephedrine) Note: Conviction quashed and the Applicant was re-sentenced on 13 November 2020
Downing Centre District Court	13/11/2020	Dealing with proceeds of crime $10,000 or more	Convicted. No further penalty imposed
Downing Centre District Court	13/11/2020	Conspiracy Import/Export Commercial Qty of Border Controlled Drugs/Plants	Convicted Imprisonment 7 years and 3 months Commence: 23 July 2017 (Methamphetamine)
Downing Centre District Court	13/11/2020	Joint Commission Import/Export Commercial Qty Border Controlled Precursors	Convicted. No further penalty imposed