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

McKenzie and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4957 (4 December 2020)
Division: GENERAL DIVISION
File Number: 2020/5545
Re:Bradley McKenzie
APPLICANT

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

DECISION
Tribunal:Member Rebecca Bellamy
Date:4 December 2020
Place:Brisbane

The decision under review is affirmed.
........................[SGD].....................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Subclass 444 Special Category (temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review – drug addiction – drug related crime – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
4 December 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 27-year-old citizen of New Zealand. In 20 May 1999 when he was six years old, he moved to Australia. The most recent visa granted to him was a Class TY Subclass 444 Special Category (temporary) visa (“visa”).[1]
[1] Exhibit G1, Section 501 G-documents, G10. This visa was granted to the Applicant on 6 January 2015.
On 12 March 2020, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 25 March 2020, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 11 September 2020, the Respondent decided not to revoke the cancellation.[4]
[2] Ibid, G10 page 128.
[3] Ibid, G7, pages 44 to 49.
[4] Ibid, G3, page 13.
The Applicant subsequently lodged an application for review in this Tribunal on 14 September 2020.[5] The Tribunal has jurisdiction to review that decision pursuant to

s 500(1)(ba) of the Act.
[5] Ibid G2.
The hearing of this application proceeded on 18 and 19 November 2020. The Applicant gave evidence via video conference. The Applicant’s mother, father, and three friends of the family gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]
[8] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 3 March 2020 the Applicant was sentenced to concurrent terms of imprisonment of 18 months, 12 months (x 2) and three months with an immediate parole eligibility date. On the basis of that sentencing episode, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
After the mandatory cancellation of the Applicant’s visa, on 18 March 2020, he was sentenced to further terms of imprisonment, being concurrent terms of three and a half years, two and a half years, and two years, with a non-parole period of 21 months. While it was not these sentences that triggered the mandatory cancellation of the Applicant’s visa, they and the conduct giving rise to them, are relevant to whether there is “another” reason to revoke the mandatory cancellation.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[9]
[9] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[10] and “Other considerations”.[11] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[10] The Direction, paragraph 13.
[11] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
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:[12]
“…Direction 65 [now Direction 79] 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.”[13]
[12] [2018] FCA 594.
[13] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant and his family moved from New Zealand to Mackay, Australia when he was six years old.[14] He completed year 10 of high school in 2010 and commenced a diesel fitting apprenticeship.[15] In January 2014, his family moved to the Gold Coast.[16] His parents opened a car wreckers business. The Applicant lived with his parents and worked in their business, dismantling cars and doing mechanical work.[17]
[14] Exhibit G1, Section 501 G-documents, G8, pages 66 to 68.
[15] Transcript, page 5, lines 10 to 21.
[16] Transcript, page 45, lines 30 to 46; page 58, lines 8 to 9.
[17] Transcript, page 5, lines 39 to 40.
The Applicant has a lengthy criminal history commencing in 2013, that includes some 102 offences of which 100 were committed between 2016 and 2019. He also committed some 20 traffic offences between 2010 and 2019.
The Applicant’s criminal offending broadly falls into the following categories:
·possession of dangerous drugs and related items;
·importation of dangerous drugs including in a commercial quantity;
·assaulting/obstructing police;
·fraud and dishonesty offences including theft, stealing, fraud, wilful damage, forgery, uttering, receiving tainted goods and unlawful use of motor vehicles;
·unlawful possession of weapons;
·repeated breaches of orders, including breach of bail, contravening direction/requirements, and breach of community-based orders; and
·Traffic offences including speeding, failure to stop, drug driving, careless driving and disqualified driving.
The Applicant started committing traffic offences in 2010 when he was 17 years old. He was caught driving more than 20kmph over the speed limit. The following month he was caught for “driver not have proper control of vehicle”. A week later he was again caught speeding. His license was suspended for three months due to loss of demerit points. Three months after the suspension expired, in December 2010, he committed “careless driving/due care and attention”.[18] He said he lost control of the car in the rain.[19] He was put on a twelve-month good driving period in April 2011 but continued to offend in that period by speeding on three occasions and failing to display green P plates. In mid-2012, his license was again suspended, this time for six months. In 2013 he was caught speeding again.[20]
[18] Exhibit R2, Respondent’s Tender Bundle, TB3, page 19.
[19] Transcript, page 38, lines 40 to 44
[20] Exhibit R2, Respondent’s Tender Bundle, TB3, page 17.
Between 2015 and 2016, the Applicant committed seven more traffic offences including drug-driving on 9 January 2016. The following month his license was suspended again for 3 months.[21]
[21] Ibid, page 18.
The Applicant has been brought before the courts and sentenced for his offending on at least 13 occasions. Initially the penalties included non-custodial sentencing such as fines ranging from $75 to $2000, good behaviour bonds, probation orders and multiple suspended sentences of imprisonment.
The vast majority of the Applicant’s criminal offending was committed between 2016 and 2019. His evidence was that he was using methamphetamine recreationally and it became an addiction in early 2016 following the break-up of a long-term relationship and his grandmother becoming ill.[22] He said he started using GBL in April 2016 and he was immediately addicted. He was using both drugs daily.[23]
[22] Exhibit A2, Applicant’s Further Evidence, pages 1 to 4; Transcript, page 6, lines 19 to 23.
[23] Transcript, page 33, lines 25 to 46.
Rather than recount the Applicant’s extensive offending history in its entirety, I will summarise where convenient.
The Applicant’s first non-traffic offence occurred in August 2013 when he was found in possession of four bags of methamphetamine and a glass pipe. In June 2014, he was sentenced to a six-month good behaviour bond with a condition that he attend a drug diversion program.[24]
[24] Exhibit G1, Section 501 G-documents, G4, page 35.
On 15 April 2016, according to Queensland Police records,[25] the Applicant assaulted and obstructed police as follows:
·     the police were arranging for his car, which was parked behind his parents’ business premises, to be towed under hooning laws. He had been charged and released from the police watch house earlier that day. The police informed the Applicant’s parents that the vehicle would be towed as it had been involved in a second Type 1 hooning offence. As the tow truck arrived, the Applicant approached his car with his parents and argued with police about the vehicle being towed. He said “If you drag the car onto the tow truck I will break your fucking nose”. Police requested another crew for back up;
·     the Applicant and his parents walked into the business while police continued to load the vehicle. A short time later the Applicant walked towards the vehicle and police holding a power drill in his hand for the purpose of taking his number plates off. The police repeatedly told him not to, and he ignored them. They told him to drop the power drill and he said “If I want to take the plates off my car or get something out I can. It’s my fucking car”;
·     the Applicant was told to stay away from the vehicle, but he went to the driver’s side door. He was warned that he would be charged with obstructing police. He opened the driver’s side door and police approached. He held the power drill up towards police and said “I don’t give a fuck.” Police asked him to put the drill down numerous times. He eventually put it on the ground;
·     Constable H attempted to retrieve the Applicant’s property from behind the driver’s seat for him. The Applicant picked up the power drill and the police asked him to put it down. He said “You are on a power trip.” He was given a second warning that he would be charged with obstructing police;
·     as the vehicle was being loaded onto the tow truck, the Applicant went to the passenger’s side and opened the door while abusing police. Constable H grabbed the Applicant who then turned towards him, still holding the power drill, waving it in close proximity to Constable H causing him to push the drill in a downward motion away from himself. The Applicant eventually moved away;
·     the Applicant dropped the drill which was retrieved by Constable B. The Applicant then pushed Constable B with both hands before taking a step back and shaping up in an aggressive stance with his fists clenched to his side and saying “Give me my fucking drill cunt!”;
·     Constable H presented a taser and pointed it towards the Applicant. The Applicant decamped on foot back to the business and police followed. The Applicant returned with his father. Police told him he was under arrest, he went back into the business, then he returned with a large crow bar. He held it in a threatening manor whilst yelling “Fuck off cunts!”. Constable B then pointed a taser at the Applicant and told him to drop the crow bar. The Applicant complied and went into a back office inside the building;
·     the back-up crew arrived, the Applicant continued to run from the police, and he was cornered. He climbed onto the roof of an unrelated vehicle and eventually climbed down. He was handcuffed and taken to the watch house.
[25] Exhibit R2, Respondent’s Tender Bundle, TB4, pages 207 to 208.
The Applicant agreed that the police account was accurate, and he agreed that he was on drugs at the time.[26] He pleaded guilty to two charges of assault or obstruct police.
[26] Transcript, pages 18 to 19.
On 5 October 2016, police found the Applicant in the passenger seat of a stolen vehicle and he was charged with unlawfully using a motor vehicle. He was also found with a glass pipe and 2.2grams of methamphetamine.[27]
[27] Exhibit R2, Respondent’s Tender Bundle, TB4, pages 44 and 63; G4, page 34.
According to other Queensland Police records;[28]
·     on 25 September 2016 a firearm, being a Marlin rifle, was stolen in a robbery;
·     on 5 December 2016 there was a traffic accident and when police searched one of the vehicles involved they located the stolen firearm;
·     on 22 January 2017, police charged a person (not the Applicant) with the attempted murder of a police officer. That person’s mobile phone was downloaded and police found photographs of the Applicant in possession of the stolen firearm. There were also photos of the firearm’s serial number and model. The photos had the time and date stamp 20 November 2016, 2:26am. The police established that the photos were taken at the Applicant’s parents business premises;
·     on 25 January 2017, the police arrested the Applicant on an outstanding warrant. He refused to answer any questions about the stolen firearm. He was issued with a Notice to Appear. When completing the Notice to Appear, the Applicant said that a female associate had attempted to sell him the firearm; and
·     the firearm was genuine and not a replica, and the Applicant did not hold a weapons license.
[28] Ibid, TB4, page 40.
In April 2017, the Applicant was convicted of unlawful possession of a weapon.[29]
[29] Exhibit G1, Section 501 G-documents, G4, page 34.
In the hearing, the Applicant denied ever having been in possession of the firearm and he denied that he was depicted in a photograph in possession of the firearm. He said he was charged because he had a photograph of the firearm. He said “All I had was a photo of a rifle and I got charged for possession of it, for having a photo of it”. [30] and “I had a photo of a firearm. I never had a firearm”[31]. The Applicant was asked how he came to have a photo of the firearm, to which he replied that someone showed him the firearm and he took a photo of it.[32] He agreed that there were photographs of the firearm at his parents business premises.[33] He said he pleaded guilty to unlawful possession of a weapon because his lawyer told him that if he did not plead guilty and went to trial it was “going to take ages”[34].
[30] Transcript, page 15, lines 39 to 43.
[31] Transcript, page 16, lines 4 to 5
[32] Transcript, page 16, lines 12 to 15.
[33] Transcript, page 15, lines 44 to 46.
[34] Transcript, page 16, lines 24 to 29.

There are several difficulties with the Applicant’s account. First, the police record does not state that the Applicant was found in possession of photographs of the firearm. It states that another person had photographs that depicted the Applicant in possession of the firearm. Second, it seems unlikely that the Applicant would be charged with possession of a weapon, and that a court would accept a guilty plea, based on the Applicant having a photograph of the firearm. Third, there is the question of why it would matter if pleading not guilty would cause delay. When the Applicant was asked if he was on bail, he said “I’m pretty sure, yes”[35]. When he was then asked why it mattered if challenging the charge would “take ages” he changed his evidence to “No, I was in custody actually. I was in custody”. When asked how long he was in custody, he said three months.[36] When challenged on this he said “I don’t know whether I was or not. Honestly, I don’t know. It’s confusing all this paperwork in front of me. I don’t understand”.[37] He then said he got out of custody by pleading guilty to the offence.[38] There is no evidence in the police records or in the Applicant’s criminal history that the was ever remanded in custody in relation to this offence. Having said that, I am mindful that such a period on remand would not necessarily be apparent in these particular records. However, the Applicant’s evidence that he was charged solely because he had a photo of the weapon is inherently implausible and his explanation for pleading guilty was so fluid that it lacked credibility. Where the Applicant’s evidence with respect to this offence differs from the criminal history and police evidence, I prefer the latter.
[35] Transcript, page 16, line 30.
[36] Transcript, page 16, lines 30 to 35.
[37] Transcript, page 16, lines 36 to 44.
[38] Transcript, page 17, lines 1 to 2
Between January 2017 and July 2017, the Applicant was sentenced in five sentencing episodes for offences that included possessing drugs (GHB and methamphetamine) and related paraphernalia, possessing unlawful weapons, fraud, assaulting police, contravening a direction, and failing to appear on five occasions. He was ordered to pay fines and restitution for these offences.
On 25 July 2017, Australian Border Force (“ABF”) intercepted a parcel from Hong Kong to Australia. It was addressed to a parcel locker in the Applicant’s name. It contained 2 x one litre bottles of GBL, labelled as “wallpaper primer” and weighing 1.92 kg. On 13 August 2017, the ABF intercepted another parcel from Hong Kong addressed to the same address and described as “trees activate the broth”. It contained two bottles of GBL. Messages that police subsequently recovered from the Applicant’s phone indicated that:[39]
·29 June 2017, a user called “China friend” said “Yesterday night you send a requiry (sic) about our Butyrolactone” to which the Applicant replied with smiley face emojis;
·on 3 July 2017, the Applicant asked about delivery times and for any “previous proof of delivery from someone who has brought (sic) off you and had shipped to Australia”. He asked about methods of funds transfer for a litre sample and was told that one litre cost about US$90 including shipping. He was told that “We use the discrete packing to sure the safety”. The next day, the Applicant confirmed that he was “about to deposit coin for 5 litres” and that “payment is sent”. There was a discussion about separating the five litres into two separate shipments, in the sender’s words, “for the safety”;
·on 21 July 2017, the Applicant raised concerns with “China friend” about the delay in receiving the shipments and asked if he would get a refund if he did not receive the packages. He was told there is a “resend policy”. The Applicant asked if he could have a sample of dianabol (an anabolic steroid) or some extra GBL as compensation for the delay;
·on 25 July the Applicant said “I really hope I receive package as I am a business person and I won’t (sic) to order 50l plus a month but I need to see it arrive before the spend big moneybags”.
·on 27 July 2017, “China friend” indicated that the package might have been discovered by Australian customs. Nevertheless, on 1 August 2017, the Applicant asked for another 2kg of GBL to be sent; and
·on 18 August 2017, the Applicant contacted “China friend” and suggested relabelling future consignments and placing them in small bottles as well as changing the sender’s name and destination name and address.
[39] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 11 to 15.
It appears from these messages that the original order was split into two separate consignments, being the two that were intercepted in July and August 2017. It does not appear that any law enforcement action was taken against the Applicant in relation to these at this time.
On 28 August 2017, the Applicant was arrested in relation to various offences. He had been found in possession of stolen bankcards, driving licenses and a necklace. The cards and licenses were obtained by the Applicant from stealing mail at various address, normally apartment complexes, between June and July 2017. On 6 July 2017, he used a stolen driving licence to fraudulently obtain a gold necklace worth $2,999.[40] During July and August 2017, the Applicant used the stolen bank cards and a stolen driving license to purchase goods and to hire a camper trailer.[41]
[40] Exhibit R2, Respondent’s Tender Bundle, TB4, pages 83 and 88 to 89.
[41] Ibid, TB4, pages 114 to 121.
On 29 August 2017, the Applicant was sentenced to imprisonment for three months for failing to appear on 16 August 2017. He was granted a parole release date of 29 September 2017, meaning he served one month in prison. He said he did not use drugs while he served that sentence.[42]
[42] Transcript, page 39, line 34.
On 21 September 2017, while still serving that sentence, the Applicant was convicted of approximately 34 offences committed during 2017 and the assault police and unlawful use of motor vehicle offences from 2016. The offences included multiple convictions of stealing, fraud, uttering, receiving tainted property and enter premises. Other offences included breach of bail, possessing drugs and utensils, failing to stop a motor vehicle, and failing to appear. For the offences of failure to appear, unlawful use of motor vehicle, and two counts of entering a premises and committing an indicatable offence (stealing from mail rooms) he was sentenced to various concurrent periods of imprisonment with an effective sentence of seven months imprisonment, fully suspended. For some of the other offences he was sentenced to 30 months’ probation.[43]
[43] Exhibit G1, Section 501 G-documents, G4.
Despite the suspended sentences and the probation order, the Applicant continued to offend. On 5 December 2017, the police executed a search warrant at an address where the Applicant was staying and found 10-15ml of GHB and a syringe in a satchel which the Applicant had identified as his. The police also located a number of stolen bank cards, credit cards and identification cards in the bag.[44]
[44] Exhibit R2, Respondent’s Tender Bundle, TB4, page 129.
On 12 January 2018, police tried to intercept a vehicle that was being driven by the Applicant. The vehicle appeared to take evasive action. Police later found the vehicle stationary and saw the Applicant get out and retrieve an electronic skateboard from the boot in a hurry. Police yelled at him to stop but instead he attempted to start the electric skateboard and crashed immediately. He then tried to start the skateboard but police surrounded him. As he was being questioned by the police he took a folding knife from his pocket and dropped it into a garden bed. The knife is of a kind that can be operated with one hand. Police also found two grams of methamphetamine in the Applicant’s possession. The Applicant told police he was too intoxicated from “ice” and alcohol to participate in an interview. [45] The Applicant told the Tribunal that he used the knife to put grip tape on his skateboard. He agreed that he did not have any tape on him when searched and said he had put it on his skateboard.[46] While I accept that it is possible that the Applicant carried around a knife and tape rather than taping his skateboard at home and that he had used up all his tape when the police intercepted him, I find each of those things unlikely and I do not accept this explanation.
[45] Ibid, pages 134 and 137.
[46] Transcript, page 23, lines 11 to 14.
On numerous occasions in January and February 2018, the Applicant entered various residential estates and buildings and stole mail, occasionally damaging some mailboxes.[47] He also continued to commit property offences including stealing a phone, an electric fence energiser and headphones from various retail shops.[48]
[47] Exhibit R2, Respondent’s Tender Bundle, TB4, pages 150 to 154.
[48] Ibid, TB4, pages 160 to 179.
On 13 February 2018, police attended the Applicant’s family home to arrest him in relation to the stealing and mail theft offences. He was subsequently charged with, and convicted of, obstructing police on the basis that he had struggled with the police. The Applicant and both of his parents gave evidence that the Applicant had not resisted arrest and that he had been handled roughly by police.[49] The Applicant said the police were forcing his arm behind his back “breaking my arm up against my back”.[50] He said he was not affected by drugs on that occasion. Given the Applicant’s history of obstructing and assaulting police, I think it is it is possible that the police on this occasion expected a struggle and applied some force in anticipation which resulted in the Applicant seeming to resist. I also note that the evidence does not indicate that he was drug affected on that occasion. I am satisfied that, despite the Applicant’s conviction for obstructing police, he was not trying to resist arrest on that occasion.
[49] Transcript, page 54; page 64, lines 1 to 18.
[50] Transcript, page 23, lines 40 to 44.
The Applicant was remanded in custody. On 25 May 2018, he was convicted of numerous offences committed in late 2017 to 2018. He was sentenced to concurrent periods of imprisonment of 15 months for mail theft and for enter premises and commit indictable offence. He received other less serious penalties for the rest of the offences. Taking into account the 102 days that he had already served in pre-sentence custody, he was immediately released on a good behaviour bond for six months. As his offending had breached the conditions of the suspended sentence imposed in September 2017, it was fully invoked so that the Applicant had to serve the seven months of imprisonment. However, he was granted immediate parole.[51] Therefore, the Applicant was both on parole and subject to a good behaviour bond. The Applicant told the Tribunal that he did not use drugs during the time he was in custody from February to May 2018, however he resumed using drugs “a couple” of weeks after he was released.[52]
[51] Exhibit G1, Section 501 G-documents, G4.
[52] Transcript, page 34, lines 16 to 20.
On 6 August 2018 a Mitsubishi ASX that was parked in the driveway of a residential address was stolen. The thief had first used a remote garage control that was inside the vehicle to enter the residence and steal a wallet and keys from the kitchen area. On 22 August the Applicant was found by police driving that vehicle. He was later charged and convicted of unlawful use of a motor vehicle.[53]
[53] Exhibit R2, Respondent’s Tender Bundle, TB4, page 191; Exhibit G1, Section 501 G-documents, G4, page 30.
On 14 August 2018, another consignment of GBL was intercepted by the ABF. This one was from Hong Kong and addressed to the Applicant’s sister at the Applicant’s address. It contained three 900ml bottles of GBL, labelled “sonic motorcycle engine oil”.[54]
[54] Ibid, TB2.
Between 19 and 21 August 2018, the Applicant communicated with a person in China about the consignment being delayed.[55]
[55] Ibid,
On 21 August 2018, the Applicant stole a purse from a service station. His vehicle was captured on CCTV. The next day, police observed the same vehicle the Applicant was seen driving on that occasion and executed a search warrant. They found numerous bank cards in the name of the owner of the purse. Police approached the Applicant who ignored their directions to stop. He got into another vehicle, the stolen Mitsubishi ASX, and drove off. He was subsequently located and arrested. Police found eight Subutex (buprenorphine) strips, a glass ice pipe and a clip-seal bag containing traces of crystalline residue.[56] The Applicant was held on remand until 7 January 2019 when he was sentenced to 12 months imprisonment, suspended for 18 months for these offences.[57]
[56] Ibid, page 199.
[57] Exhibit G1, Section 501 G-documents, G4.
While on remand, the Applicant made phone calls to his sister regarding the third consignment of GBL, and these were recorded on the prison system. Police accessed the recordings. On 29 August the Applicant’s sister told him “it hasn’t rocked up yet” to which he replied “it should have”. The Applicant said he would need it when he gets out or if he was not out, he would give his sister the phone number of someone to give it to. He said he had posted his iPhone to a PO Box and he gave her the code to access it.
I pause here to mention that in the hearing the Applicant claimed that the GBL was solely for his personal use.[58] He said buying in bulk was cheaper, safer and more reliable than buying on the streets.[59] When it was put to him that he told the supplier that his plan was to order 50 litres per month which would involve “big moneybags”, he said that’s what he told the supplier so they would give him a cheap price for it. He said he was using about 50 millilitres per day.[60] Based on his usage, a quantity of 50 litres would last him for 1000 days. The quantity of five litres that was discussed with “China friend” in July 2017 would have lasted him for 100 days.
[58] Exhibit A2, Applicant’s Further Evidence, pages 1 to 4; Transcript, page 32, lines 15 to 20.
[59] Exhibit A2, Applicant’s Further Evidence, pages 1 to 4.
[60] Transcript, page 32, lines 26 to 33.
I asked the Applicant how he planned to continue to order small amounts for a cheap price from the supplier and never order the quantity he said he was going to order (50 litres). He said:
“Well I never received anything, so I wasn’t going to go spending - I wasn’t going to go spend thousands and thousands of dollars on something that I haven’t received. So every single one of them I ordered, got intercepted by the AFP. So even though there is an intention there, I never - I never received anything so.”[61]
[61] Transcript, page 32, lines 36 to 46.
I then said:
“What I’m asking is, that plan has to come undone pretty quickly. If you’re ordering small amounts and telling your supplier you’re going to be ordering bigger amounts, even if they get through, at some point they’re going to realise that you’re not ordering the big amounts?”
to which he said:
“Yes, I understand that. But at the end of the day, I never received anything so it’s like - you know, it’s like they knew that I wouldn’t receive anything anyway.”[62]
[62] Transcripts, page 33, lines 1 to 6.
I find his answers unsatisfactory in they did not directly answer the question asked. I am not, therefore, persuaded that the Applicant did not intend to purchase 50 litres per month if the first few importations were successful.
When the Applicant was convicted and sentenced for the three importations, the learned sentencing Judge made the finding that some of the GBL was intended for the Applicant’s use and the rest was likely to have harmed other members of the community. I do not find the Applicant’s evidence sufficiently persuasive to make a finding that is contrary to the Supreme Court’s finding. I am satisfied that the Applicant intended to supply some of the GBL to others.
On 13 September 2018, the Applicant again spoke with his sister and asked her to have a look at his mobile, go to the TNT shipment tracking application on it and “tell me what the go is with that. You know what I mean, what I was waiting for”. His sister said the phone was off but nothing had “rocked up yet”.
On 13 October 2018, the police executed a search warrant at the Applicant’s address and seized his iPhone. Police unlocked it using the pass code that he had provided to his sister which revealed extensive communications between the Applicant and a number of people using the WhatsApp messenger application dating back to 2017.
On 15 November 2018, the Applicant was interviewed by police and he denied any knowledge of the importations, suggested he was “stitched up” and said he had lost a lot of iPhones and that they were all linked up through iCloud, and suggested he may not have seen any of the 500 odd WhatsApp messages to and from “China friend” and others if the notification function was not turned on.[63] He agreed that his surname was McKenzie and that he was born in 1993 but denied any knowledge of the WhatsApp user identity “Macka093” on his phone. He also denied that either of his more recent iPhones had a pass code on them.
[63] Exhibit R2, Respondent’s Tender Bundle, TB2, page 15.
On 16 November 2018 the Applicant phoned his sister and said that “AFP came and see me yesterday, yeah I’m fucked”. He told her that they “charged me with importation. So what I asked you about the other day just be really careful. Make sure that everything is deleted”.[64]
[64] Ibid, pages 11 to 15.
When it was put to the Applicant that he had arranged the third importation from gaol, he said:
“Not really, no. It was already something that was already on its way. It was already coming, like. I honestly – I - when I done all this stuff I was that off my face I didn’t know what I was doing, you know what I mean.”
I accept that the consignment was already on its way before the Applicant entered custody. However, he made efforts to track and secure it while in custody. When asked if he was off his face while he was incarcerated, he answered in the negative.
The Applicant then denied that he was even seeking to secure it. He said:
“All I was doing was telling my sister…can you please get rid of it. Like throw it in the bin or get rid of it, destroy it. Obviously I didn’t want anything to do with it when I got out.”[65]
[65] Transcript, page 35, lines 12 to 36.
He said he did not want the third consignment and that he did not want anything to do with drugs when he got out of gaol.[66] The recordings of the phone calls with the Applicant’s sister revealed him telling his sister that he would need the package when he got out or that he would give her the phone number of someone to give it to. There is no evidence of him asking her to dispose of it. When it was put to the Applicant that the Statement of Facts prepared for the for the sentencing proceedings said “He says that he’ll need it when he gets out” which strongly suggested that he did not want to get rid of it, he said “I honestly don’t know… This is a long time ago” and:
“I can see what you’re saying, but at the end of the day I was off my head on drugs when this happened, when I was even - like I don’t know, I just - I don’t want to talk about that question”.[67]
[66] Transcript, page 35, lines 38 to 41.
[67] Transcript, page 42, lines 20 to 37.
In addition to the comment about needing the package, the Applicant put a lot of effort into finding out whether the package had arrived which also suggests that he wanted it rather than that he wanted it disposed of. I am satisfied that the Applicant was seeking to secure the consignment of GBL from gaol. He did that at a time when he had been on remand, and off drugs, for over two months.

On 7 January 2019, the Applicant was released from prison – see paragraph 49 above.
On 17 April 2019, while his licence was still disqualified, the Applicant was involved in a traffic collision. The police records state that the Applicant had driven a stolen vehicle with false number plates into the rear of another vehicle causing extensive damage and pushing it into another vehicle. He then reversed away and left the scene. The police located the vehicle and the Applicant nearby. The vehicle contained a bottle containing of GHB and a quantity of opened and unopened mail in various persons’ names that had been date stamped by Australia Post in March and April 2019.
The Applicant appeared to be drug affected. He ran away to avoid being apprehended despite directions from the police to stop. The police pursued the Applicant up the street where they heard a woman yelling “get out” from a nearby address. Police approached as the front gate opened and they saw the Applicant standing next to a woman who was “screaming in fear”. The Applicant ignored directions from police to get on the ground and instead he ran away. He was chased by the police and arrested. The Applicant was under the influence of amphetamine and methamphetamine at the time of the crash. He was charged with disqualified driving, drug driving and failing to fulfil duties while involved in a crash, and had his licence suspended for a further two and a half years. He was also charged with unlawful use of a motor vehicle.[68]
[68] Ibid, TB1, pages 1 to 3 and page 10.
Between February 2019 and May 2019, the Applicant continued to offend, including stealing mail and packages from various addresses and damaging mailboxes. On 28 May 2018 police attended the Applicant’s bail address and were told that he had not been residing there for three or four days, which was a breach of his bail conditions. Police later found the Applicant at another address. He ran into the backyard. Police told him that he was under arrest for breaching bail, and he continued to run and jump over neighbouring fences. The Applicant was arrested on 29 May 2019 and remanded in custody.
On 3 March 2020, he was sentenced for 23 offences. For 12 mail theft offences, he was sentenced to 12 months imprisonment with immediate release on a good behaviour bond. For 10 other offences he was sentenced to concurrent sentences of three months and 12 months imprisonment, and for the unlawful use of vehicle offence stemming from the crash in April 2018, he was sentenced to 18 months imprisonment also to be served concurrently. The Applicant was given an immediate parole eligibility date.
This sentencing episode led to the mandatory cancellation of the Applicant’s visa on 12 March 2020.
The Applicant was subsequently convicted on 18 March 2020 in relation to the three intercepted packages containing GBL. He was convicted of importing a border-controlled drug x 2, and importing a commercial quantity of a border-controlled drug. He was sentenced to concurrent terms of imprisonment, with a total effective sentence of three and a half years with a non-parole period of 21 months.
The learned sentencing Judge’s remarks in passing sentence included the following:
“One kilogram is the cut off for a commercial quantity. The drug [GBL] is relatively cheap to purchase from China. However, the quantity of the drug in count 3 alone would sell here in Australia, wholesale, for between $2800 and $8400. Its retail or “street” price is between $11,200 and $22,400.
…
You must know that it has been linked to death and serious side effects, mental and physical, including an inability to control your bowels, breathing and heart problems, as well as serious anxiety. Its side effects can be worsened when taken in combination with the use of alcohol or other drugs.
…
No community wants it circulating amongst its members, and had the drugs you imported not been intercepted and had they reached the community, acknowledging that some of it was for your own use, other quantities of it were likely to have harmed other members of the community and in that way, more broadly, the community as a whole. As I read the psychologist’s report, you yourself have experienced the negative effects of drug use.
I am satisfied that a term of imprisonment is the only appropriate penalty, having regard to the seriousness of your offending; what I consider to be its persistence, that it involved a commercial quantity on one occasion, your role in it and your criminal history.”[69]
[69] Exhibit G1, Section 501 G-documents, G6.
The Applicant is currently serving this term of imprisonment and will be eligible for parole in March 2021. His parole period will expire on 29 November 2023.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
On one occasion the Applicant physically assaulted a police officer in the performance of duty. When police were trying to have his car towed, he pushed an officer with both hands. In addition to that, during that incident, he:
·     made the verbal threat “If you drag the car onto the tow truck I will break your fucking nose”;
·     made the following physical threats:
o   retrieved a crow-bar and held it a threatening manner whilst yelling “Fuck off cunts!”;
o   waved a power drill in close proximity to Constable H; and
o   after pushing Constable B with both hands, shaped up in an aggressive stance with his fists clenched to his side and saying “Give me my fucking drill cunt!”;
·     used offensive language and spoke abusively to police; and
·     defied requests and directions issued by police.
The Applicant’s conduct is serious pursuant to factors (a) and (c) of paragraph 13.1.1(1) of the Direction. His verbal and physical threats, some involving make-shift weapons (power drill and crow-bar), could reasonably have caused the officers involved to fear serious injury. Pushing Constable B could have caused serious injury although it appears that it did not. The police felt it necessary to request a back-up crew and to prepare to activate a taser twice due to the Applicant’s threatening conduct. The Applicant’s behaviour on that occasion, and on other occasions when he has sought to evade police or refused to comply with directions, shows consistent disrespect for the lawful authority that governs the community to which he now seeks to be returned. Threatening to harm those who protect and serve the community is abhorrent behaviour.
The Applicant has been sentenced to multiple custodial sentences. In accordance with the principle that the imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court, the Applicant was initially given the benefit of non-custodial sentences including drug-diversion, fines and a good behaviour bond, yet he kept offending. The lengthy sentences of imprisonment that were ultimately imposed on the Applicant not only reflect the seriousness of the individual offences but the volume and frequency of the offences. For example, on 3 March 2020, he was sentenced to 12 months imprisonment for multiple thefts of mail from various locations. He explained in the hearing that his intention in stealing mail was to take bank cards and use them to fraudulently purchase goods and drugs.[70] There is also evidence that he used driving licenses to commit identify fraud for financial gain.
[70] Transcript, page 22, lines 11 to 14.
In that sentencing episode, the Applicant was also sentenced to imprisonment for 18 months for unlawful use of a motor vehicle. That arose from the incident when he was drug-driving in a stolen car, he crashed into another car and fled the scene. This conduct in its entirety is appalling. It demonstrates disrespect for the law, the road rules and the safety of other members of the community.
The most serious offending, reflected by the longer custodial sentences, was the three importations of GBL. The Applicant was a principal offender. He knew it was illegal to import GBL, he persisted in his efforts even after his contact in Hong Kong suggested the first consignment may have been intercepted, he involved his sister in the third offence, and he continued trying to secure the third consignment while he was on remand. One consignment was a commercial quantity and I have found, in accordance with the findings of the learned sentencing Judge, that some of the GBL was intended for supply to others. As Her Honour noted, consumption of GBL has serious physical impacts.
Each head sentence for the importations of GBL (two and a half years x 2, and three and a half years) is substantial as is the 21 month non-parole period. The learned sentencing Judge made clear that the sentences reflected the seriousness of the offences, the persistence of the offending, the Applicant’s criminal history and the fact that one importation involved a commercial quantity.
The Applicant’s criminal conduct was certainly frequent, involving over 100 offences between 2016 and 2019. He committed several different types of offences, many of which directly impacted members of the community, such as the mail theft, or put people at increased risk of harm, such as the drug-driving. While there is not a trend of increasing seriousness in the specific offences the Applicant committed, there is an increase in the seriousness of the circumstances in which the offending occurred over time. That is, the offending after May 2018 occurred while the Applicant was on parole and subject to a good behaviour bond. Further, the largest quantity of GBL was imported during this time and the Applicant took steps to secure that consignment while on remand for other offences. The Applicant’s traffic offending is reasonably frequent and there is a clear trend in increasing seriousness with a drug-driving offence in 2016 and another drug-driving offence involving a collision in 2019.
The cumulative effect of the multiple thefts of mail is that many members of the community were deprived of mail that included driving licenses and bank cards, people became victims of identify fraud with the Applicant obtaining credit in their names (the hire trailer and the necklace), and businesses fell victim to the Applicant’s use of stolen cards to obtain goods. It can be readily inferred that the Applicant’s offending caused financial loss and widespread inconvenience to members of the community. The same can be inferred about his thefts from businesses and individuals.
The Applicant’s traffic offending, in particular the drug-driving and careless driving offences put members of the community at increased risk of serious injury or death on several occasions. It is not known whether the occupant/s of the car the Applicant hit in 2019 were injured physically or psychologically but it must have been very distressing to be hit by the Applicant’s vehicle and then pushed into another vehicle.
By offending frequently, contravening bail conditions and court orders, and evading, obstructing and assaulting police, the Applicant has used up a great deal of police and court resources, in addition to the resources of the ABF. What is more, he has engaged in frightening behaviour in public places, for example he abused and assaulted police outside his parents’ business premises and he terrified a woman in her own home by running into her property when fleeing from police. His unregulated and anti-social behaviour placed a significant burden on the community for around four years.
I do not consider factors (b), or (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant engage in further importations of GBL with at least some of it intended for supply to others, it cannot be assumed that they will be intercepted. The harm from the circulation of GBL in the community according to the learned sentencing Judge includes death and serious side effects, mental and physical, including an inability to control one’s bowels, breathing and heart problems, and serious anxiety. Her Honour said the side effects can be worsened when taken in combination with alcohol or other drugs. Further, the Applicant’s own experience shows that it can be a highly addictive drug and that addicts may resort to crime to support their addiction.
The potential harm from further violence and threats against police officers includes physical and psychological harm to those carrying out an already stressful job.
Should the Applicant commit further mail theft and associated offences, the harm includes financial loss to individuals and businesses, inconvenience, and distress felt by victims of identity theft.
Should the Applicant continue to commit offences of the kind that increase the risk of a collision on the roads, especially driving stolen vehicles, drug driving and careless driving, the potential harm includes serious physical and/or psychological injury and death.
Overall, the harm from further offending of the kinds that the Applicant has previously engaged in includes harm of a very serious nature.
Likelihood of engaging in further criminal or other serious conduct
The Applicant provided a statement dated 13 November 2020.[71] He said he started dabbling in alcohol and drugs as a teenager and it became an addiction in 2016, following the break-up of a relationship and his grandmother becoming ill, with his parents being away a lot and his grandfather subsequently moving into their family home. He said it was an overwhelming and stressful time, and when his drug use increased, he began committing crimes for the sole purpose of funding his expensive drug habit. He said his family knew he was using drugs but not the extent of his addiction or use until he was incarcerated. When he was using drugs, he was not concerned about anything other than providing for his habit, and he did not think about the consequences of his actions. He said the drugs “messed me up so much that I could not keep track of when I was supposed to be in court”. The Applicant said he stayed away from his family home when he was using drugs. That is, he would stay with a friend or in hotels for a couple of weeks at a time, and return to the family home for short periods, such as a day or two. [72]
[71] Exhibit A2, Applicants Further Documents, pages 1 to 4.
[72] Transcripts, page 40, lines 32 to 45.
The Applicant’s mother provided a letter of support and a statement, and she gave evidence in the hearing.[73] She said the Applicant’s character changed dramatically after the breakup of his relationship in 2016. She said around the same time her mother became ill and she and her husband were spending a lot of time with her in Mackay before she passed away. They were also trying to keep their business afloat with the help of the Applicant who was working in their business. She described the Applicant as having a natural talent when it comes to adapting parts to solve mechanical problems. She said around 12 months after her mother passed away, her father moved to the Gold Coast to have their family’s support. She said the Applicant was slowly pulling away from the family, not staying at home, and associating with a different crowd of people. She said she and her husband approached him on several occasions asking if he was all right and he told them he was. The Applicant’s father provided a statement[74] that was consistent with this.
[73] See Exhibit A2, Applicants Further Documents, pages 5 to 6.
[74] Exhibit A2, Applicants Further Documents, A2, pages 7 to 8.
A friend of the Applicant’s parents, Ms Egan, provided a letter of support,[75] and she gave evidence in the hearing. She said she and her husband had known the Applicant’s family since 1999 and had known the Applicant in his younger years when he was at school. She said he did some work for their civil construction company and he helped her eldest son get a business off the ground. He was always well mannered, polite and hard-working “prior to his spiral downwards”.[76] I accept her evidence.
[75] Exhibit G1, Section 501 G-documents, G8, page 107.
[76]Ibid.

Another friend of the Applicant’s parents, Mr Percey, provided a letter of support[77] and he gave evidence in the hearing. He first met the Applicant in Mackay. He was the general manager of a Leagues Club and he hired the Applicant on a casual basis as a bar attendant from 2012 until when his family moved to the Gold Coast in 2014. He described the Applicant’s work ethic during that time as exceptional. He said the Applicant had access to money and there was never any problem with that.[78] He expressed confidence that the Applicant could get his life back on track with rehabilitation and ongoing support from his parents. I note that Mr Percey said he was not aware of the Applicant ever using drugs during that period of employment,[79] but the Applicant did use drugs during that period – he was caught with drugs and utensils in August 2013 and he admitted to recreational use since his teens. I accept Mr Percey’s evidence with the qualification that from 2012, he was only privy to the Applicant’s conduct in the workplace.
[77] Exhibit G1, Section 501 G-documents, G8, page 110.
[78] Transcript, page 78, lines 5 to 10.
[79] Transcript, page 77, lines 42 to 46.
The Applicant’s offending was not all related to his drug addiction. In addition to recreational use of illicit drugs, he committed many traffic infringements before his addiction began. He committed his first drug-driving offence on 9 January 2016. This must have been before he became addicted to methamphetamine as that followed the break-up of his relationship in “early 2016”, and it also pre-dated the commencement of his use of GBL in April 2016.
Having said that, it is clear that the Applicant’s drug addiction led to the vast majority of his offending and had a detrimental effect on his behaviour and attitude. The Applicant’s father said that when the Applicant was coming down from “whatever they do on the weekends” he might “get a bit shitty and agro” at work[80], and there is also the evidence of his behaviour towards police when affected by drugs which lead him to be charged with multiple offences of assaulting or obstructing police.
[80] Transcript, page 62, lines 10 to 13.
The Applicant gave evidence that he only realised he had a serious drug problem when he was incarcerated in 2018. I asked him about various incidents that occurred prior to that incarceration and asked if those had alerted him to his drug problem. Those incidents included the altercation with police in April 2016 and the time when he had possession of a firearm at his parents’ business premises. In relation to the latter, he said he did not think there was anything wrong with it at the time, saying “you know, I was - I was off my head on drugs… I didn’t know wrong from right”.[81]
[81] Transcript, page 39, lines 1 to 21.
Another example of the detrimental effect of the Applicant’s drug dependency on his thinking is that when he was diagnosed with anxiety and depression in 2017, he did not take the medication he was prescribed.[82] Nor was he willing to do drug rehabilitation. His father said he and his wife tried to get the Applicant into residential rehabilitation on one occasion. He said:
“There was a place taken but - when they think they’re unstoppable, they don’t want to go to rehab. They need to want to go, and they’ll tell you that when you ring the rehabs. We can’t - you know, if I could have committed him to somewhere, no matter where it was in Australia I would have. But they have to consent to go.”[83]
[82] Exhibit A2, Applicants Further Documents, A2, pages 1 to 4.
[83] Transcripts, page 63, lines 21 to 26.
Nor did the Applicant stay off drugs after periods of incarceration during which he was abstinent. After spending a month in custody in 2017, he relapsed. He said he realised he had a problem with drugs but “it wasn’t long enough to stay off the drugs basically. A month doesn’t really do much for you when you’re a drug user”.[84] After a longer period of imprisonment, between February and May 2018, he was put in what he described as “group psychological intervention”, however he said this put him into contact with other drug users and he again relapsed after his release. He said “I wanted to stop using drugs, obviously I just started using drugs again because of the people I was hanging around”[85] and “well basically it was the people I was hanging around with when I got out, that made me use drugs again.”[86] He said although he realised he had been addicted to drugs at this time, he did not consider doing any kind of rehabilitation.[87]
[84] Transcript, page 39, lines 35 to 40.
[85] Transcript, page 34, lines 25 to 28.
[86] Transcript, page 39, lines 41 to 45.
[87] Transcript, page 40, lines 1 to 5.
The Applicant said he now completely accepts responsibility for the wrongs he has committed. He said since being incarcerated he has become aware of how bad his drug addiction was at the time he offended. He did not have this insight previously as he was never off drugs for long enough to have clarity of mind, which he has now. Since being in prison he is able to work again, and he works in the laundry unit. He has obtained a Certificate II in Logistics since being incarcerated which will allow him to work in Warehousing if he is allowed to remain in Australia. He said if he gets his visa back his plan is to do whatever it takes to get his head straight and work towards a life without drugs.[88]
[88] Transcript, page 9, lines 28 to 29.
The Applicant said he does not think he will ever be tempted to use drugs again because he realises what they have done to him and he is afraid to use drugs again and end up back in gaol.[89] He recognises that his old associates are not true friends and has no wish to contact them.
[89] Transcript, page 9, lines 41 to 45.
He has attempted to do rehabilitation courses in prison but has only ever been put on a waitlist.[90] He has made contact with external rehabilitation services such as Lives Lived Well, the Salvation Army and Drug Arm for the purpose of engaging in drug rehabilitation upon his release from prison.[91] He thinks those organisations will be able to help him by, in his words:
“…working out what my problems are and working out how I can fix the problems. Working out all my triggers and wotnot. What to do if I feel like using drugs, all that sort of stuff.”[92]
[90] Transcript, page 6, line 31 two page 7, line 10.
[91] Transcript, page 7, lines 14 to 28.
[92] Transcript, page 8, lines 15 to 20.
When asked what prevention plan he had in place, he said:
“Well, I haven’t really - I haven’t got any plans in place, because that is what I want to get out and engage in rehab, so I can do that sort of thing. I am lost for help unless I get help on the outside. Like, I honestly don’t know what to do.”[93]
[93] Transcript, page 9, lines 15 to 20.
If he gets his visa back, the Applicant plans to live with his parents. Once he has done the “ground work with the rehabilitation services” he intends to work in the mines.[94] A friend of his parents, Mr Brown, gave evidence that he can get the Applicant a job in the mines and that random drug tests are carried out on employees there.[95] I accept Mr Brown’s evidence.
[94] Exhibit A2, Applicants Further Documents, A2, pages 1 to 4.
[95] Transcript, page 74, line 40 to page 75, line 7.
The Applicant has not used drugs since he most recently entered custody in May 2019, meaning he had been drug free for 18 months. He is now taking medication to manage his mental health.[96]
[96] Exhibit A2, Applicants Further Documents, A2, pages 1 to 4.
The Applicant’s mother thinks the Applicant has turned a corner and has a different attitude now. She said before the pandemic, she and her husband had visited him frequently in prison and had numerous emotional conversations with him, where he showed remorse and deep shame for his actions.
However, I have some concerns about the genuineness of the Applicant’s remorse as I do not think he has accepted full responsibility for some of his offending conduct, for example, despite the findings of the learned sentencing Judge, he did not admit that some of the GBL was intended for supply to others. I am also concerned about his past attitude to compliance with the law even when not dependent on drugs. He attempted to secure the third consignment of GBL when he had been in gaol, and therefore had been drug-free, for around two and a half months meaning he did that with a clear head. The Applicant also has a history of breaking road rules that pre-dates his drug dependence. In the hearing, he was unable to provide an explanation as to why he had committed those traffic offences.[97]
[97] Transcript, page 38, lines 25 to 28.
There is no evidence before me to indicate that the Applicant has specifically addressed his past preparedness to break traffic and other laws even when not suffering from a drug addiction. At most, the evidence is that he is remorseful for his offending generally and he does not want to go back to gaol. I am not satisfied that the Applicant has developed a greater respect for the law independent of his aversion to being caught and punished.
The Applicant, having been drug free for 18 months, being willing to undergo drug rehabilitation programs and counselling and having taken the initiative to contact appropriate services, and having discussed his drug addiction with his parents, is better placed now than he was previously to stay off drugs. However, his abstinence has all been within a controlled environment thus far and his rehabilitation is in its infancy as he has not been able to undertake targeted rehabilitation courses in gaol and he does not have a clear concept of his rehabilitative needs in terms of abstaining from drugs and offending. At this stage, his disposition towards problematic use of illicit drugs remains unresolved.
In addition, I have concerns about his parents’ ability to help him if he falters in his rehabilitation. I am satisfied that the Applicant’s parents would give him any support that he is willing to accept, including arranging and paying for residential rehabilitation, however his drug dependency and offending initially went unnoticed by his parents. Even when they became aware of it, they were not aware of the full extent of the problem, despite him working in their business and living with them between 2016 and 2019,[98] albeit with significant periods of absence.
[98] Transcript, page 34, lines 40 to 41.
The Applicant’s mother gave evidence that during the time the Applicant was distancing himself from the family she did not suspect that he was using drugs. She said that was because her father had moved in and there was so much going on at the time. She said when she later attended court with the Applicant, she asked him if things were okay and he said they were.[99] She told the Tribunal that she attended court with the Applicant on three or four occasions. It should have been apparent, as he was attending court for criminal matters, that things were not okay.
[99] Transcript, page 51.
Further, the Applicant’s mother exhibited a somewhat relaxed approach to his anti-social behaviour. Some of his aggressive and offensive conduct towards police during the incident in April 2016 occurred in front of his parents as they were present with him for part of it. The Applicant’s mother was asked whether she recalled any behaviour like swearing towards the police. She said the Applicant was quite reasonable. She said she and her husband had driven the Applicant to work that morning, the police kept insisting the Applicant had driven the car (that the police were seeking to have towed) and there was an altercation. She was asked about bad language, and said she did not think it was directed at the police, that it was more about the whole situation.[100] To a reasonable minded person, the Applicant’s offensive language was quite obviously directed at the police and, even if he did not agree with the action the police were taking, the way he handled it was not reasonable.
[100] Transcript, page 54 line 42 to page 55, line 3.
The Applicant’s father said that when he realised the Applicant had a problem with drugs, he mentioned it a few times and the Applicant always denied it. He said:
“Being a loving father, sometimes you get a bit of heated argument and then I get into him about it and had to walk away and sort of, yes, he used to say it wasn’t a problem and he knows what he’s doing…”[101]
[101] Transcript, page 62, lines 1 to 6.
The Applicant’s parents attributed their failure to notice the Applicant’s problems following the break-up of his relationship, and the extent of his subsequent drug problem, to the issues that they were dealing with at the time, being the Applicant’s grandmother’s illness, the impact on his grandfather, and trying to keep their business running. They still have a lot of responsibilities in regard to their business interests as the lease for their business premises was not renewed throwing their business into chaos. Their daughter has also been recently diagnosed with bipolar disorder. Despite their intentions, I am not confident that they would initially notice if the Applicant were to relapse. Nor am I confident that they could help the Applicant if he were to relapse. When the Applicant was addicted to drugs, it affected his thinking such that he did not know right from wrong, all he cared about was obtaining drugs to feed his addiction, and he was unwilling to engage in intervention despite his parents’ efforts.
The sentencing remarks of the Supreme Court indicate that a psychologist’s report was put forward on behalf of the Applicant. That report is not in the materials before me. Her Honour the learned sentencing Judge noted that the Applicant’s risk of reoffending had been assessed as moderate and that it was obviously linked to his ability to get his drug use under control. The psychologist expressed the opinion that the Applicant was committed to his rehabilitation and that one of the factors that was likely to help with his rehabilitation, if he was genuinely committed to it, was the support of his family. Her Honour noted that she had taken a cautious approach to the psychologist’s report because the Applicant was not completely frank with the psychologist, although she did not say in what way he was not frank. Her Honour made these remarks in March 2020 which is relatively recently. While, I do not have the benefit of knowing the factual basis and the reasoning that led to the moderate risk rating, it is reasonable to infer that the psychologist was aware that the Applicant had abstained from drug use since entering custody, ie. for 10 months at that point, and that she took that into account along with his expressed commitment to rehabilitation and the support of his parents. The rating was accepted by the learned sentencing Judge who did have the benefit of the report before her. Accordingly, I take the risk rating into account. It is consistent with the rest of the evidence before me relevant to the Applicant’s risk of re-offending.
I consider there to be a moderate risk that the Applicant will commit further offences of the kind that he has committed.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Applicant does not claim to have any minor children in Australia whose best interests would be affected by his visa cancellation[102] and no such claim arises from the evidence.
Conclusion: Primary Consideration B
[102] Exhibit A1, Applicants Statement of Facts, Issues and Contentions, page 10.
This Primary Consideration is not relevant to the determination of this application.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[103]
[103] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states that:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C

Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was six years old and he has lived in Australia for 21 years;
·he started committing traffic infringements when he was 17 years old. He committed his first criminal offence three years after that;
·the Applicant’s offending is prolific, persistent and includes some serious offences of the kind that have the potential to cause significant harm within the community;
·there is a moderate risk that he will re-offend;
·his offending demonstrates a disrespect for the laws and lawful authorities regulating the community that he seeks to re-enter, and a disregard for the safety of members of that community. When addicted to drugs he was impervious to intervention. Prior to that, when not addicted to drugs, he committed numerous traffic infringements and a drug offence. During a period of abstinence while on remand, he sought to track and secure the third consignment of GBL that he had ordered before his incarceration;
·he went to school in Australia and prior to his addiction to drugs he had an impressive employment history given his age. The evidence indicates that when he is not addicted to drugs, he is a hard-working, reliable employee with a good work ethic;
·he does not claim to have done voluntary work in the community; and
·if he is removed to New Zealand it will adversely affect his parents, two siblings, grandfather and possibly an uncle who all live in Australia (addressed below under Other Considerations).
Conclusion: Primary Consideration C
The Applicant has breached the trust of the Australian community. The nature of his offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of six and he is now 27. He has spent over two decades, including his formative years, in Australia. He did not start offending soon after relocating to Australia but that is to be expected, given he was only six years old when he came here. His started committing traffic infringements at the age of 17 and committed his first non-traffic offence three years later. He can be afforded some credit for the gap between his arrival and the commencement of his offending under paragraph 14.2(1)(a) of the Direction but not much.
The Applicant was employed from 2009 until early 2018. He did a diesel fitter apprenticeship from 2009 to 2012 (that he did not finish). He worked for labour hire companies, fixing mining equipment, from 2012 to 2014, and he worked as a mechanic in his parents’ business from 2014 until he commenced his current term of imprisonment.[104] Since 2016, his attendance at work was patchy.[105] Still, he has a solid work history, and for his contribution to the community through gainful employment, he is entitled to some weight under paragraph 14.2(1)(a)(ii) of the Direction. He does not claim to have done any voluntary work in the community.
[104] Exhibit A2, Applicant’s Further Evidence, pages 1 to 4.
[105] Transcript, page 60, lines 40 to 43.
The Applicant’s family in Australia consists of his parents, his sister, his brother, his grandfather and an uncle.[106] I accept that his parents are unable to relocate to New Zealand as they have significant ties in Australia including their other son and their daughter, his mother’s elderly father, their business and a mortgage. The Applicant’s sister is undergoing treatment for a serious mental disorder and she has a partner in Australia. The Applicant’s brother has lived in Australia since he was six months old and therefore Australia is all he knows. I accept that none of the Applicant’s family are likely to join him in New Zealand if he is deported.
[106] Exhibit G1, Section 501 G-documents, G8, page 123
The Applicant’s parents both expressed their worry for the Applicant if he is deported. It is clear to me that they have both suffered emotionally since the Applicant was incarcerated and his visa was cancelled. The Applicant’s father said he had been experiencing panic attacks lately and had sought medication. He has been diagnosed with anxiety and depression. There is a medical certificate dated 11 November 2020 corroborating this.[107] The Applicant’s father has no doubt that his condition is partly caused by the Applicant’s situation and the impact that deportation will have on the entire family who live in Australia.[108]
[107] Exhibit A2, Applicant’s Further Evidence, page 19.
[108] Ibid, pages 7 to 8.
The Applicant’s mother said his sister is extremely close to him and she had a breakdown in January 2020. She said one of the contributing factors was the stress of not knowing what was going to happen to the Applicant. She has now been diagnosed with bipolar disorder and is being treated successfully. She is worried about how the Applicant will cope in New Zealand with no family support. The Applicant’s younger brother, who is six years younger than him, is devastated at the thought of missing out on growing up with the Applicant[109], although at the age of 21 he is already an adult.
[109] Ibid pages 5 to 6.
There is no evidence before me about the likely impact of a non-revocation decision on the Applicant’s grandfather who lives with his family, or his uncle in Australia, however it seems reasonable to infer that they would be saddened by it.
There is no claim that any of the Applicant’s family members rely on him for financial, emotional or other support. The Applicant did not claim to have any significant social ties in Australia. The letters of support for the Applicant are from friends of his parents who appear to care for his welfare but do not appear to have any ongoing contact with him personally.
The Applicant’s familial ties, and the likely impact that his removal from Australia on his family here, weigh significantly in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs significantly in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant has an aunt, and uncle, and four cousins in New Zealand,[110] however based on the evidence of the Applicant and his parents I accept that he does not know these relatives well and they would probably not provide him with support in New Zealand.
[110] Exhibit G1, Section 501 G-documents, G8, page 73.
The Applicant’s parents are concerned for him as he has no support in New Zealand. The Applicant is concerned about his mental health given he has lived in Australia for 21 years and his lack of ties in New Zealand. He misses his family now while he is incarcerated, and he cannot bear to think about how much worse that would be if he is deported. I accept that it is unlikely that his parents could visit New Zealand in the near future given the pandemic and the uncertainty surrounding their business.
The Applicant will be able to keep in touch with his family via phone and electronic means although I acknowledge that it is not the same as being physically present with his family. The Applicant will have access to medical and psychological care to the same the extent, and in the same manner, as other citizens of New Zealand. He will also have access to the same governmental/social support as other New Zealand citizens.
The Applicant is a 27 year old man who is able bodied and does not claim to have any medical conditions. He takes medication for his depression and anxiety, and there is no reason to conclude that he would not be able to continue to access that medication in New Zealand. The Applicant lived in New Zealand to the age of six and has returned to New Zealand for short visits on five occasions, the most recent being in 2012 and 2016. He speaks the language and he knows the culture. He has worked as a bar attendant, a diesel fitter (incomplete apprenticeship) and doing mechanical jobs for his parents’ business. While in prison he obtained a Certificate II in Logistics which qualifies him for Warehousing work.[111] He has employment prospects in New Zealand, and as a citizen he will be able to access government financial assistance there.
[111] Exhibit A2, Applicant’s Further Evidence, pages 1 to 4.
It is likely that the Applicant’s removal to New Zealand will cause emotional hardship, and he will face the initial challenges of securing accommodation, financial support/income, psychological/rehabilitative support and establishing a social network. However, I am not satisfied that these matters would prevent his successful re-settlement in New Zealand.
This Other Consideration (e) weighs slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weights significantly in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weights slightly in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B is not relevant;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.............................[SGD]...........................................
Associate
Dated: 4 December 2020

Date of hearing: 18 November and 19 November 2020

Solicitor for the Applicant:

Ms Jennifer Samuta

Samuta McComber Lawyers

Solicitor for the Respondent
Mr Jake Kyranis

Sparke Helmore

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G12 pages 1 to 175)

R

-

28 SEP 2020

A1

Applicant’s Statement of Facts, Issues and Contentions

A

13 OCT 2020

13 OCT 2020

A2

Applicant’s Further Evidence including:

1.    Statement of Bradley McKenzie dated 13 November 2020

2.    Statement of Tracey McKenzie dated 13 November 2020

3.    Statement of Marcus McKenzie dated 13 November 2020

4.    Letter from Wayne Percey dated 6 May 2020

5.    Letter from Thomas Brown dated 10 May 2020

6.    Letter from Drug Arm dated 13 October 2020

7.    Letter from Salvation Army dated 1 October 2020

8.    Medical Certificate of Marcus McKenzie dated 11 November 2020

9.    Identification of Marcus McKenzie and Tracey McKenzie Undated

A

-

13 NOV 2020

R1

Respondent’s Statement of Facts, Issues and Contentions

R

30 OCT 2020

30 OCT 2020

R2

Respondent’s Tender Bundle (TB1 to TB5 pages 1 – 224)

R

-

30 OCT 2020

[2020] AATA 4957

4 December 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G12 pages 1 to 175)	R	-	28 SEP 2020
A1	Applicant’s Statement of Facts, Issues and Contentions	A	13 OCT 2020	13 OCT 2020
A2	Applicant’s Further Evidence including: 1. Statement of Bradley McKenzie dated 13 November 2020 2. Statement of Tracey McKenzie dated 13 November 2020 3. Statement of Marcus McKenzie dated 13 November 2020 4. Letter from Wayne Percey dated 6 May 2020 5. Letter from Thomas Brown dated 10 May 2020 6. Letter from Drug Arm dated 13 October 2020 7. Letter from Salvation Army dated 1 October 2020 8. Medical Certificate of Marcus McKenzie dated 11 November 2020 9. Identification of Marcus McKenzie and Tracey McKenzie Undated	A	-	13 NOV 2020
R1	Respondent’s Statement of Facts, Issues and Contentions	R	30 OCT 2020	30 OCT 2020
R2	Respondent’s Tender Bundle (TB1 to TB5 pages 1 – 224)	R	-	30 OCT 2020