Medcalf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 803

Medcalf and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 803 (9 April 2020)
Division:GENERAL DIVISION
File Number:2020/0447
Re:Russell Medcalf
APPLICANT

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

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:9 April 2020
Place:Perth

The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa, pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
........................[sgd].........................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – traffic convictions – drug convictions – aggravated assault against former partner – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor child – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 35 year old man who arrived in Australia as a 17 year old child – extent of impediments if returned to New Zealand – impact of COVID-19 pandemic – Applicant subject to detention for indefinite period if decision affirmed – Tribunal finds that there is another reason why the decision to cancel the Applicant’s Visa should be revoked – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 198, 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection
(No 2) [2015] FCA 705
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
DKXY v Minister for Home Affairs [2019] FCA 495
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
JFSQ and Minister for Home Affairs [2019] AATA 616
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
QJTT and Minister for Home Affairs [2019] AATA 152
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection
[2014] FCA 673;
(2014) 225 FCR 424

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79:
Visa Refusal and Cancellation under s 501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14.1, 14.2, 14.3, 14.5, Part C
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
9 April 2020
BACKGROUND

The Applicant is a 35 year old man who is a citizen of New Zealand.
He first arrived in Australia on 5 March 1987 when he was two years old, but returned to New Zealand on 16 May 1990 when he was approximately six years old. He then returned to Australia again on 13 June 2001 when he was nearly seventeen years old and has resided in Australia since that time (G21, page 102).
The Applicant committed his first driving offence in 2004 and his first criminal offences of property damage and common assault in 2006, when he was approximately 20 and 22 years of age respectively. To date, he has committed a total of approximately 50 offences, with 26 of those being driving offences (G10, pages 48-49).
On 1 August 2017, the Applicant was sentenced in the District Court of South Australia to a total term of three years, nine months and two weeks imprisonment for three counts of

“traffic (type unknown) in a controlled drug” (drug trafficking offences) (G10, page 48).
In a letter from the Department of Home Affairs (Department) dated 27 April 2018,

the Applicant was advised that his Class TY Subclass 444 Special Category (Temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) (G3, pages 6-9) (Cancellation Decision). The basis of the cancellation was that the Applicant did not pass the character test due to having a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more. The letter was handed to the Applicant on the same date (G4, page 25).
The Applicant was advised that he could make representations to seek revocation of the Cancellation Decision, which he did (G13 and G14, pages 61-88; G16, pages 92-97).

The Department acknowledged receipt of these representations in a letter dated

25 May 2018 (G5, page 26).
In a letter dated 16 August 2019, the Department of Home Affairs advised the Applicant that they intended to take into account his National Criminal History Check and Prisoner report from the South Australia Department of Corrective Services and invited the Applicant to comment on this information (G15, pages 89-91). The Applicant provided further evidence in response (G18 – G19). The Applicant’s former partner also spoke with, and wrote to the Department, stating her support for the revocation of the cancellation decision (G22, page 103; G25, page 108; G26, page 109).
However on 17 January 2020 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (G9, page 36). This is the Reviewable Decision currently before the Tribunal.
The Applicant was notified of the Reviewable Decision in a hand delivered letter dated

20 January 2020 (G9, pages 34-35). The Applicant signed to acknowledge receipt of the Reviewable Decision on 21 January 2020 (G30, page 148).
On 23 January 2020, the Applicant lodged an application in the General Division of the Administrative Appeals Tribunal (the Tribunal) seeking a review of the Reviewable Decision (G2, pages 3-5). Therefore, the Applicant filed his application for review within the nine day period prescribed by s 500(6B) of the Migration Act.
Subsection 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period started running on 21 January 2020, meaning that the Tribunal must hand down a decision with respect to this application by no later than 14 April 2020, which is the Tuesday following the Easter long weekend.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)
if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the mandatory Cancellation Decision (that is,

the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on 30 and 31 March 2020.
Following a Directive from the President of the Tribunal, His Honour Justice Thomas,

the Tribunal ceased conducting in person hearings from Monday 23 March 2020 due to the risks associated with the COVID-19 pandemic. Consequently, the Applicant, who was self-represented, appeared by video conference from Yongah Hill Detention Centre. Ms Tattersall, representing the Respondent, also appeared by video conference. The Tribunal thanks the parties for appearing via video conference, and for their adaptability and assistance in doing so.
The Applicant gave oral evidence and was cross-examined. He called his former partner as a witness, who gave evidence by telephone, and was cross-examined.
The Tribunal admitted the following documents into evidence at the hearing:
(a)
Section 501 documents (G documents) numbered G1 to G30, comprising

148 pages (Exhibit 1);
(b)Respondent’s Statement of Facts Issues and Contentions dated 25 February 2020 (Exhibit 2);
(c)Further bundle of documents (Exhibit 3) comprising:
(i)a photograph of the Applicant’s child;
(ii)references from the Applicant’s former partner and four other character references;
(iii)an undated statement from the Applicant;
(iv)Decision of the Parole Board of South Australia to release the Applicant on parole on 21 August 2018;
(v)South Australia Pathology Reports dated 19 November 2017 and 8 December 2018 detailing results of the Applicant’s prison urinalysis tests;
(vi)Four certificates of participation or completion of vocational courses in prison between 2016 and 2018;
(vii)
Two letters from the Salvation Army dated 24 November 2017 and

15 November 2018 expressing appreciation for volunteer work undertaken by the Applicant packing Christmas packs for prisoners.
(d)Tender bundle filed on 26 March 2020 and comprising 701 pages (Exhibit 4).
Oral submissions were made at the hearing regarding the impact of COVID-19 pandemic on this application, following a request from the Tribunal to do so on the Friday prior to the hearing. The Tribunal sought further written submissions from the parties on the impact of the COVID-19 pandemic on the relevant considerations before the Tribunal, including the prospect of indefinite detention (transcript, day 2, page 72). The Respondent filed its submissions on 2 April 2020 and the Applicant on 6 April 2020. These submissions are discussed under the “extent of impediments if removed” other consideration below, and a subsequent heading of “COVID-19”.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by

subsection (7); or
…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of

12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
a)would be the reason, or a part of the reason, for making the original decision; and
b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
a)the person makes representations in accordance with the invitation; and
b)the Minister is satisfied:
a) that the person passes the character test (as defined by section 501); or
b) that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
a)the performance of those functions; or
b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014).
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(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 to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing 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 should be allowed to come to, or remain permanently in, Australia.
(7)
The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that

non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.

Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in

Direction No 79 can be found in paragraph 8 of Direction No 79, “Taking the relevant considerations into account”, which provides:
(1)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 to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As noted above, on 1 August 2017, the Applicant was sentenced in the District Court of South Australia to a total term of three years, nine months and two weeks imprisonment for three counts of a drug trafficking offence. Consequently, the Applicant does not pass the character test under s 501(6)(a) and s 501(7)(c) of the Migration Act.
As the Applicant does not pass the character test, the Tribunal must now consider whether there was “another reason” why the Reviewable Decision should be revoked

(s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
Paragraph 13.1(2) of Direction No 79 then provides:
Decision-makers should also 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.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed 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 subparagraph (b) above, the sentence imposed by the courts 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;
A summary of the Applicant’s criminal and driving offences are as follows (G10,

pages 48-50). The dates stated are the court dates:
(a)the convictions in 2017 for the drug trafficking offences, referred to above;
(b)
other drug offences being two counts of “possess controlled drug (not cannabis)” (2016), “possess equipment to use with controlled drug (not cannabis)”

and “possess prescribed equipment” (2015);
(c)convictions for violence being “aggravated assault (no weapon) against child or spouse” (2016) and “common assault on person other than family member” (2006);
(d)other general offences being “Trespass in residence (aggravated offence)” (2015), “dishonestly take property without consent” (2011), “Loitering” and “Resist police” (2007), “Damage Property not by marking graffiti/ damage type unknown” (2006);
(e)
breaches of court imposed orders and bail including “Estreatment of bail”

(one count in 2006 and three counts in 2016), “Fail to comply with bail agreement” (2016 and two counts in 2016) and “contravene term of intervention order”

(three counts in 2015 and one count in 2016);
(f)
26 driving offences between 2004 and 2016 including “Drive unregistered motor vehicle”, “driving uninsured motor vehicle”, “drive vehicle without a licence”, “unauthorised person drive motor vehicle on road”, “drive under disqualification or suspension”, “drive in a vehicle with combination of drugs in fluid or blood”

(being THC, methylamphetamine and MDMA – see Exhibit 4, page 136).
It was the Applicant’s conviction of 1 August 2017 for the three counts of the drug trafficking offence that resulted in the Cancellation Decision. The facts on which the Applicant was sentenced were set out by the Sentencing Judge, His Honour Judge Tilmouth (Exhibit 4, pages 1-2). His Honour stated:
…Each offence occurred on separate occasions between 9 and 31 May 2016… You were exposed after an investigation relating to another man.

After monitoring his phone, police became aware that you were in regular contact with and supplying methylamphetamine to him.
Count 1 occurred between 9 and 12 May. It involved a ball of methylamphetamine according to the text messages that was approximately 3.5 g. Count 2 occurred on 19 May 2016 when you and he discussed money in varying quantities of methylamphetamine, namely, ‘half g’ and ‘half b’. You eventually agreed to supply him with a full box which again amounted to a [sic] approximately 3.5 g.
The third count occurred on 31 May 2016. You were intercepted by police on the way to his house and arrested in relation to other matters. You were subsequently searched and found to have 2.67 g of methylamphetamine and 16 LSD tablets in your underpants, although the tablets do not form part of this sentence.
The police searched your home just over two months later and located a Samsung mobile phone, empty plastic resealable bags, a wallet, associated SIM cards and a tick list. Based on the quantities and descriptions involved, you cannot be considered to be a street level dealer. Each 8-ball is capable of yielding between $4,800 and $9,600. The number and nature of the contacts between you and he and others prior to these events, demonstrate these were not isolated transactions, but unlike him on the basis of the current charges, it is not proven you were a persistent or recidivus street dealer. Even so, you could be fairly described as a ‘middle order dealer’. You have submitted through your counsel that you were simply the middle man between this other man and a dealer and that you did not make any money out of it. You accept you were repaid in drugs to feed your own addiction.
The Applicant also has a conviction for “aggravated assault” against his former partner which resulted in him contravening an intervention order protecting her. The facts were set out in the Police Apprehension Report (G6, page 27) and were not disputed by the Applicant:
At approximately 5:00am on 20^th March, 2016, the victim [the Applicant’s former partner] was at McDonalds…when she saw MEDCALF’s new girlfriend,

[name redacted],
yelling aggressively at her from outside the store.
The victim states that she had bumped into them at…[a] Nightclub earlier in the night and they had been staring and mouthing off at her so she had left. The victim exited the McDonalds store to confront [name redacted] and they began to fight; at this time MEDCALF approached them and pushed her over.
MEDCALF then began abusing her shouting aggressively, comments such as “fuck you slut, fuck you dog, where is my son”. At this time MEDCALF spat in the victim’s face three times from a close range.
The victim states that she has an Intervention Order against MEDCALF for her protection and she is terrified of him as he continually breaches it.
(Original emphasis.)
In addition to breaching the intervention order on that occasion, the Tender Bundle (Exhibit 4) contains other details of domestic violence incidents and breaches of the intervention order. These included removing his son from the custody of his former partner from 28 May 2015 to 1 June 2015; sending 30 text messages to his former partner;

and forcibly gaining entry to her house by kicking in the rear laundry door (Exhibit 4, page 121-122). At the hearing, the Applicant denied kicking in the door, which he said was broken. Orders such as intervention orders are put in place to protect victims from domestic violence, and accordingly, breaching such orders should be considered as being serious.
Direction No 79 provides that violent crimes are viewed very seriously (Paragraph 13.1.1(1)(a) of Direction No 79). Paragraph 13.1.1(1)(b) of Direction No 79 further states that crimes of a violent nature against women are viewed very seriously, regardless of the sentence imposed. Thus, the Applicant’s 2016 aggravated assault conviction against his former partner must be viewed as very serious.
As noted above, the Applicant has been convicted of 26 driving offences. The Tribunal regards offences such as driving under the influence (or drugs or alcohol) and unlicensed driving as being serious because the unlicensed and/or irresponsible use of a motor vehicle can endanger innocent road users (see for example, Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] and

Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [43]-[45]). The Applicant has never held a driver’s licence, his driving offences are numerous, and were committed over a period of approximately 12 years
. This, in the Tribunal’s view, elevates the seriousness of these offences. So too do the two terms of imprisonment in 2014 and 2015 of 14 days each for driving offences. Additionally, after these terms of imprisonment, the Applicant committed five more driving offences in 2016 (G10, pages 48-49).
Paragraph 13.1.1(1)(c) of Direction No 79 provides that “crimes committed against vulnerable members of the community … are serious”. This Tribunal has previously noted that women who are victims of domestic violence are vulnerable members of the community (see this Tribunal in QJTT and Minister for Home Affairs [2019] AATA 152

at [44], citing Deputy President Kendall (now His Honour Judge Kendall) in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]). This also adds weight to the Applicant’s aggravated assault offence against his former partner as being very serious, especially as an intervention order to protect her was in place at the time.
On 1 August 2017, the Applicant was sentenced to a custodial term of imprisonment for the drug trafficking offences (comprising three counts) of three years, nine months and two weeks, with eligibility for parole after two years and four months (G10, page 48).

The Sentencing Judge noted that the maximum penalty for each offence was 10 years, but nevertheless, the Tribunal regards the term imposed to be substantial, and to reflect the seriousness of this offending (paragraph 13.1.1(1)(d) of Direction No 79).
The sentence for the Applicant’s drug trafficking offences was not his first term of imprisonment. The Applicant was sentenced to cumulative terms of imprisonment in 2016. These were for two counts of “fail to comply with bail agreement” (for which he received a cumulative sentence of eight days imprisonment), two counts of “drive under disqualification” (for which he received a cumulative sentence of four months and

24 days), and the aggravated assault offence against his partner, for which he received a sentence (being the head sentence) of four months, three weeks and 32 days

(although the Tribunal notes this offence is serious regardless of the sentence imposed

– see paragraph 13.1.1(1)(b) of Direction No 79). These sentences of imprisonment are a reflection that the courts regarded these offences as being serious enough to warrant custodial sentences. Similarly (and as mentioned above), the Applicant was sentenced to two 14 day terms of imprisonment for driving offences in 2014 and 2015 respectively. Often driving offences are punished with fines and disqualifications (which the Applicant has also received), and so the sentences of custodial imprisonment reflect the serious regard the courts have for this type of repeat offending.
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant has a lengthy criminal history (which includes his 26 driving convictions), commencing in 2004 and occurring consistently up until his most recent conviction in 2017. In total, he has been convicted of approximately 50 offences, 26 of which are driving offences. Following these earlier driving convictions, he was convicted of other types of general offences in 2006 including common assault, and from 2015 progressed to convictions for drug related offending, estreatment of bail, and contravening the intervention order protecting his former partner. His aggravated assault conviction against his former partner in 2016, followed by his drug trafficking offences in 2017, do, in the Tribunal’s opinion, show an escalation in seriousness.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant has a lengthy criminal history, and several sentences of imprisonment, as outlined above, and numerous breaches of orders such as bail and the intervention order protecting his former partner. This repeat offending would have had a cumulative effect of placing a burden on the resources of police, corrective services,

and the court system.
The Applicant has not provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
The Applicant has not previously received any warning that further offending may affect his migration status, and so paragraph 13.1.1(1)(h) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crime while in prison or immigration detention. This is not applicable to the Applicant.
Based on the analysis above, the Tribunal finds that the Applicant’s offending ranges between serious and very serious. For example, his drug trafficking offences are serious, his driving offences (collectively) are serious, his aggravated assault offence is very serious, and his breaches of court imposed orders, particularly the intervention order protecting his partner, are serious. Overall, the Tribunal finds that the Applicant’s offending is serious, and consequently paragraph 13.1.1 of Direction No 79 weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (which was cited with approval by Mortimer J in

Tanielu v Minister for Immigration and Border Protection
[2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.

Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated at [68] that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of re-offending as requiring a “rational and probative basis”.

The harm that could result to victims if the Applicant is to re-offend in a violent manner, including domestic violence (paragraph 13.1.2(1)(a) of Direction No 79) could include psychological harm, physical injury, impairment or even loss of life. Those who witness domestic violence, particularly example, children, can suffer serious psychological harm. Deputy President Dr Kendall (now His Honour Judge Kendall) articulated these harms in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45] that:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women – children who, as in this instance, witness their mothers being abused, degraded and dehumanised – and sends a message to these children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
Should the Applicant commit further driving offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life,

and possibly psychological harm.
The nature of harm if the Applicant were to commit further drug offences is varied, but on the whole, less serious than violent offences. Purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums,

as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
The Tribunal will now consider the likelihood of the Applicant re-offending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction

No 79).
The Tribunal does not have any formal assessment of the Applicant’s likelihood of

re-offending before it, such as a psychological report or a prison treatment assessment. That is, there is no reference in any of the material before the Tribunal to the Applicant having been formally assessed as a minimal, low, moderate, high or very high risk of

re-offending.
When sentencing the Applicant on 1 August 2017 for the drug trafficking offences,

His Honour Judge Tilmouth stated (Exhibit 4, page 2):
You recently completed a sentence for an assault against the [sic] former partner, amongst other charges. You first appeared before the criminal courts in 2004 at the age of 20. This appears to have been a reaction to the suicide of your mother when she was in the final stages of cancer. You were very close to her and unfortunately found her body. After her death you began to use methylamphetamine increasingly. Regrettably this appears to be a recurring theme when life stressors occur. Late last year your brother was killed in a car accident. As you were in custody you were not permitted to attend the funeral which has had an adverse impact on you.
You come before the court with a relatively long history, mostly however for driving offences. More recently you failed to comply with bail agreements and contravened intervention orders. Your letter to the court outlines the reasons for committing these offences was a number of traumatic events which consequently sent you into a downward spiral.
To your credit you accept your actions have led to you being taken into custody.

A psychological report outlines significant problems in the areas of mental health, substance abuse, gambling addiction and aggressive behaviour. You informed the psychologist that you wish to pursue a life free of crime and drugs. His conclusion was that if you engage in appropriate rehabilitation your prospects for maintaining the lifestyle you aspire to is reasonably positive.
The Applicant’s evidence at the hearing was consistent with the Sentencing Judge’s assessment. At the hearing, the Applicant attributed his offending to the death of his mother in 2003, and finding her body (transcript, day 1, pages 7-8). His evidence was that he started using drugs around the time his mother passed away for approximately two to three years, but ceased when he started his relationship with his former partner (transcript, day 1, page 9).
With respect to the assault conviction in 2006, the Applicant’s evidence was that two of his friends were in a car crash and one of them died. He blamed the other friend who was in the car for the accident, and “lost my temper and ended up assaulting him and doing damage to his car” (transcript, day 1, page 8). His evidence was that he had an accident at work which resulted in his severing nerves and tendons in his right hand and in his being at home for approximately four or five months. It was at this point that he resumed his drug use, causing tension in his relationship with his former partner.
He stated that his methylamphetamine use started as “… just a casual thing on the weekends” but that “after a while it turned into every couple of days and then towards the end when I was done for the drug trafficking I was using every day” (transcript, day 1, page 10). The Applicant’s evidence was that his drug use contributed to his “fighting” with his former partner, and to the eventual breakdown of his relationship. Additionally, the stress caused from the breakdown of his relationship and difficulties seeing his son further contributed to his drug use. He stated that he did not realise how bad his behaviour was until he saw the materials in these Tribunal proceedings (transcript, day 1, page 27).
The Applicant stated that after the intervention order was put in place, his former partner also let him see his son on occasions. He stated: “It was quite hard for me not to be around my son and so basically every chance that I was offered to see my son I took it and on several of those occasions it ended up in arguments which led to me breaching my AVO” (transcript, day 1, page 9). And further (transcript, day 1, page 14):
SENIOR MEMBER: And so I’m just trying to get a feel for – were there periods of time where you weren’t able to see your son because of the intervention order or because of prison?
APPLICANT: Yes. That’s when I sort of went downhill quite a bit as I kept getting charged for breaching an AVO when I was invited over to spend time with my son. And the police pretty much told me that, you know, I couldn’t go near my son and that’s when I started using drugs on a daily basis to try and block that out. It was quite difficult not knowing how he was doing or whether he needed anything.
And when I was in prison I sent letters out to my son, birthday cards, Christmas cards but I wasn’t able to actually have physical contact with him due to the intervention order.
As noted from the Sentencing Judge’s comments and the Applicant’s evidence above,
it is evident that the stressors in the Applicant’s life and his drug use, contributed to his offending. The Applicant developed a significant methylamphetamine habit, and admitted to using $300-$400 worth of methylamphetamine a day before he went to prison for the drug trafficking offence (transcript, day 1, page 35). It was, however, noted by the Sentencing Judge that with appropriate rehabilitation, the Applicant’s prospects would be reasonably positive. The Tribunal will therefore now discuss the Applicant’s efforts at rehabilitative programs and counselling.
The Applicant’s evidence was that he attended Narcotics Anonymous fortnightly in prison and completed the 12 step program, and undertook “the smart recovery course”
(G14, pages 78-79). With respect to Narcotics Anonymous, the Applicant stated (transcript, day 1, page 12):
I went to Narcotics Anonymous every second week on a Monday for quite some time listening to – they brought in people that were in my – had been in my shoes that are clean and pretty much got us to talk about our experiences and how it has messed up our lives and where we want to go from there.
The Applicant also completed a domestic and family violence intervention program in 2019 (G12, page 57; G16, page 95). At the hearing the Applicant was able to describe some general gains he had made in the program (transcript, day 1, page 11) as follows:
APPLICANT: … Yes, when I was in gaol I completed a three month domestic violence course.
SENIOR MEMBER: Okay.
APPLICANT: Which actually helped me quite a lot as I didn’t realise the things I was actually doing and how they were affecting my ex-partner [name omitted]… and, yes, since then it’s brought a light to the situation.
SENIOR MEMBER: So what did you learn about in that course?
APPLICANT: I learnt how my actions were making other people feel.
How it affects other people’s lives. How I choose to act like that and how I can choose to change. And it taught me how to deal with situations and how to go about things the right way instead of losing my temper and going about things the total wrong way.
The Applicant also described having some sessions with a social worker in prison (transcript, day 1, page 13):
SENIOR MEMBER: Okay. And have you done – apart from Narcotics Anonymous were there any other courses that you did or counselling?
APPLICANT: I spoke – I was in constant touch with the social worker at
[the prison] because at the start of my sentence in 2016 my brother [name omitted] died in a car crash and I had become severely depressed and very emotional about it. I was put on antidepressants and some other tablets to help me deal with the loss and depression. I spoke to her about my drug use and about where I wanted to go in life and where I was going if I continued down that path. But apart from that that’s sort of all that the gaol could offer me.
It is commendable that the Applicant completed these courses and counselling, which do address the Applicant’s main treatment needs in the areas of substance abuse and domestic violence. It is unfortunate that there are no program completion reports, or other commentary from program facilitators before the Tribunal that specify the gains made by the Applicant, or the likelihood of his reoffending after completion. By the fact of his completion of these courses and his seeking out counselling, and given the Applicant’s evidence about what he learnt, the Applicant’s likelihood of reoffending is likely to have been reduced due to his completion of the programs and counselling but the precise extent is unclear.
To the Applicant’s credit he also completed vocational courses in prison including a

skid steer loader course, a Certificate II in Resources and infrastructure (G19, pages 100-101), as well as participating in an Occupational Health and Safety Course, and attaining skills in coffee making and food safety (see certificates in Exhibit 3). These qualifications may assist him to find employment if he is released into the Australian community, which may be a protective factor. The Applicant expressed the hope that his Certificate II in Resources and infrastructure may assist him to obtain employment in the mining sector. At the hearing the Applicant stated that he had two possible job offers through friends upon release. If this employment eventuates it could be a protective factor which may lower the likelihood of the Applicant reoffending (transcript, day 1, pages 20-21).
The Applicant has a fairly lengthy history of approximately 50 offences over a 13 year period, with 26 of these offences being driving offences. This is a large number of offences, and when viewed in isolation, is suggestive that the Applicant may offend again in the future. The reasons put forward for the Applicant’s repeated driving offences were of concern to the Tribunal. The Applicant described his first driving offences as a reaction to his mother’s death and finding her body (transcript, day 1, pages 7-8), and described driving whilst disqualified in 2014 because he needed to get to work (transcript, day 1, page 10). The following exchange is also relevant (transcript, day 1, pages 34-35):
MS TATTERSALL:     …am I right to assume that you know that you need a driver’s licence to drive in this country?
APPLICANT:   Yes.
MS TATTERSALL:     Yes? But despite that, you’ve driven without a licence on a number of occasions. Would you agree with that?
APPLICANT:   Yes.
MS TATTERSALL:     And now you’ve given a number of reasons as to why you drove without a licence, being that you were going to work; you were testing out a car; you’d only driven a little – a few hundred metres; you had to pick up your girlfriend; there were troubles with the car so you had to drive it instead of someone else; you were taking [the Applicant’s former partner] to hospital but didn’t state that there was any emergency reason; you wanted Panadol; or you were driving to the dump. Do you recall giving those reasons for driving without a licence?
APPLICANT:   Yes.
MS TATTERSALL:     So you would accept then that you basically just drove without a licence whenever it suited you?
APPLICANT:   Yes.
The Applicant was however able to describe the salient effect of prison with respect to the drug trafficking offences, including the impact of not being able to see his son, and not being able to attend his brother’s funeral which caused him substantial distress

(G14, page 75). At the hearing, the Applicant stated that (transcript, day 1, page 12):
APPLICANT: I was caught selling, well, not so much selling but through phone intercepts organising drugs for a certain person and that’s what I was doing at the time to support my drug habit and paid dearly with a gaol sentence of three years and nine months with two years four months on the bottom.
SENIOR MEMBER: Yes.
APPLICANT: But at the same time in saying that it was a blessing in disguise.

I was fairly well hooked on the drug and I needed that time to wake myself up and to realise where I was going, what path I was going down with my life,

if I continued in that manner. It cost me very valuable time with my son, which was one of the hardest things that I’ve dealt with. It also taught me a lot about myself and that the best thing that I got out of it was I’m now drug free and have been for nearly four years now.
The Applicant also stated that “the likelihood of me reoffending is 0%” (G14, page 78) and that he is “now rehabilitated” (G14, page 87). Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. The Applicant stated that, “I take full ownership for my actions and my offending, im [sic] not proud of my criminal history by no means im [sic] actually very ashamed of it” (G16, page 92).

In his closing comments to the Tribunal, the Applicant expressed remorse for his offending and showed an understanding of its broader impact (transcript, day 2, page 69):
SENIOR MEMBER: … one of the things that I have to consider is the protection of the Australian community, and so that involves me considering the nature and seriousness of your conduct and your offending, and any risk to the community if you commit further offences. Did you have anything to say in wrapping up about those things?
APPLICANT: I’m aware that the offences I’ve committed are not small offences and I am sorry for the offences and I am very remorseful for my actions and the effect it’s had on my ex-partner and on the Australian community. I’m not proud of my actions, I take full responsibility of them. As for further risk to the Australian community, I’ve put a lot of work in over the last three and a half, four years to realise my faults, to admit my wrongs and to try and justify them…
At the hearing, the Applicant showed some insight into his drug use, and did not seek to blame his offending on his drug use (transcript, day 1, page 37). This, in the Tribunal’s opinion shows a further acceptance of responsibility by the Applicant and shows that the Applicant has made some gains in the area of consequential thinking:
MS TATTERSALL: Would it be true to say that you blame your offending behaviour on your drug addiction?
APPLICANT: No. No, I don’t blame it on the drugs. It come down to poor judgment and my ability to deal with things. For sure the drugs didn’t help, but that was my choice I chose to take the drugs. I take fully responsibility for everything that I’ve done. I’m not proud of the things that I’ve done. Some of these things are quite confronting, but I’ve also worked very hard over the last three years to rectify a lot of my problems by going to NA. I did the domestic violence course to help me improve those situations. I’ve stayed drug-free the whole time that I was in prison and since being in detention, and don’t get me wrong, I’ve been around drugs but I’ve chose not to take them because of drugs and my poor choice is what’s landed me in this position right now, but I don’t contribute at all to drugs. It come down to my personal choices and I take responsibility for that.
The Applicant also described his desire to have a relationship with his son as a motivating factor not to use drugs or to re-offend (transcript, day 1, page 13):
Pretty much the driving force behind myself getting better and staying out of trouble is my son. He’s six years old now and since being in detention I have contact with him every day. And I don’t want to mess up any chance that I do have of being a father to my son. These are things that I didn’t think about while I was using drugs and committing these offences. I wasn’t aware that I could get deported for all this stuff. Since then it’s made me realise that there’s a lot more important things in life and to risk that by driving would be just absolutely stupid on my behalf. And I’ve had my time with trouble with the law and I’m 35 now and I need to put my son’s needs before any of my own and pretty much be as good a role model as I possibly can and being in trouble with the law isn’t something that I want to show my son.
The Applicant appears to the Tribunal to have a sincere desire to be there for his son and to help with the upbringing of his son, including financially, and this is also likely to be a protective factor which will motivate him to abstain from drug use and not to reoffend in the future. Both the Applicant and his former partner separately expressed an intention to work together to be good parents to their son, including a willingness to attend parenting classes together (transcript, day 1, page 14; statement from Applicant’s former partner in Exhibit 3). The Applicant also has the support of his former partner who gave evidence on the second day of the hearing (see also statement from the Applicant’s former partner in Exhibit 3) which may also be a protective factor.
The Applicant also submitted letters of support from four friends (in Exhibit 3; G18,

page 99). One stated that he was the Applicant’s best friend, another had known the Applicant for 10 years, another for 15 years and the other for “many” years. Having the support of friends in the community may be a protective factor which may reduce the likelihood of the Applicant reverting to drug use and re-offending. However, the Tribunal does have some reservations about how protective this factor will be, given that the Applicant had the support of these friends in the past, and yet still committed numerous offences. The Tribunal also notes the Applicant’s admission that one of these friends had prior criminal convictions “many, many years ago”, although the friend had remained offence free for a number of years since becoming a full-time father (transcript, day 1, page 37).

To the Applicant’s credit, there is no evidence before the Tribunal of any drug use by the Applicant whilst in prison or immigration detention. The Applicant submitted two pathology reports (in Exhibit 3) showing negative drug tests in prison on 19 November 2017 and

8 December 2018. Thus, if the Applicant is released into the Australian community, he will most likely be starting from the position of being free from drug use. This may assist him to continue to abstain from drug use in the community and thereby reduce the likelihood of his re-offending. However, prison and immigration detention are controlled environments, and are different to living in a non-prison environment, which the Applicant’s abstinence has not been tested in. There remains a slight risk that if there are stressors in the Applicant’s life, for example if he encounters future difficulties seeing his son, that he may recommence drug use which he has used as a coping mechanism in the past, and which has contributed to his offending.
The Applicant was granted release on parole by the Parole Board of South Australia

(the Board) from 21 August 2019 (parole order in Exhibit 3). However upon parole he was taken into immigration detention, which appears to have been contemplated by the Board (see conditions 23-25 of parole order). His release on parole is an indication that the Board regarded any risk to the safety of the community as manageable during a period of supervision under imposed parole conditions. Twenty five conditions were imposed including the Applicant having to report for in person weekly meetings with his community corrections officer, being required to abstain from alcohol and drugs and being required to submit to random drug and alcohol testing. The Applicant’s parole order also requires him to “undertake and satisfactorily complete counselling for Substance Abuse”. If the Applicant is released into the Australian community he will be subject to parole supervision and conditions for approximately 10 months until 4 February 2021. This period of parole supervision and the conditions imposed will help the Applicant abstain from drug use, will provide the Applicant with ongoing support and will assist his rehabilitation and reintegration into the community, thereby further reducing his likelihood of reoffending.
As noted above, there is no scientific assessment of the Applicant’s likelihood of reoffending before the Tribunal. However, to the Applicant’s credit, he has resolved to stop using drugs, has had a period of abstinence in prison and immigration detention, and he undertook Narcotics Anonymous and the 12 step program as well as seeing a social worker to assist him with his grief following the death of his brother. His reintegration into the Australian community would also be assisted by a 10 month period of parole. His desire to be a good role model for his son and to be part of his son’s upbringing is also likely to be a protective factor. Taking these factors into account, the Tribunal finds that the Applicant’s likelihood of committing further drug and domestic violence offences if he is given the chance to be released back into the Australian community is low to moderate.
The Tribunal is also of the opinion that there is now a moderate likelihood of the Applicant committing further driving offences, given the number and frequency of these offences, despite the Applicant never having held a drivers licence, the repeated nature of these

26 offences, and his admission that he drove without a licence whenever it suited him. Prior to his most recent term of imprisonment, the likelihood of the Applicant committing driving offences was most likely high, but the Tribunal has taken into account the protective factors outlined above, including the salient effect of imprisonment,

the motivation that the Applicant’s son has given him, his abstinence from drugs in prison and his period of parole supervision, which would, in the Tribunal’s view, reduce the risk to moderate.
The Tribunal finds that paragraph 13.1.2 of Direction No 79 weighs moderately against the revocation of the Cancellation Decision.
When both parts of the first primary consideration are considered, the Tribunal finds that this primary consideration weighs moderately to strongly against the revocation of the Cancellation Decision.
Second primary consideration: The best interests of minor children in Australia (paragraph 13.2 of Direction No 79)
Paragraph 13.2 of Direction No 79 provides, in part:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of Direction No 79 continues on to outline the factors that a

decision-maker must consider when determining the best interests of a child.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)The impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has a six year old biological son with his former partner.
The materials before the Tribunal also identified other children as potentially being relevant to consider, and so the Tribunal asked the Applicant about them at the hearing. These children are the 16 year old daughter of the Applicant’s former partner from her previous relationship, the Applicant’s four and two and a half year old nephews, and the daughter of the Applicant’s friend.
6 year old son
The Applicant is the biological father of his six year old son, and there is a parental relationship between them (paragraph 13.2(4)(a) of Direction No 79). The Applicant lived with his son and his son’s mother until they separated when his son was three weeks old (transcript, day 2, page 51), and had daily involvement in his son’s care. The Applicant’s evidence was that he saw his son every second day during the first 12 months after he separated from his former partner (transcript, day 1, page 14). However, his former partner’s evidence was that she only let the Applicant see his son every few months during this time due to her concerns about the Applicant’s drug use, but that she did let her son have a couple of overnight stays with the Applicant (transcript, day 2, page 51).
The frequency of contact expressed by the Applicant’s former partner is most likely the more accurate history. It is more plausible that after the end of the relationship, which both parties described as being fraught with conflict towards its conclusion, the Applicant’s frequent drug use and an intervention order being in place, that contact would be less frequent than that described by the Applicant.
The Applicant’s former partner stated in his evidence that her son last saw the Applicant approximately eight months before he went into prison when the child would have been approximately two years old (transcript, day 2, page 52). They recommenced contact in approximately December 2019 when the Applicant’s former partner obtained a variation of the intervention order which included the Applicant’s son. The evidence of the Applicant’s former partner was that the Applicant has been speaking to their son “every day nearly and they have built up a pretty good relationship” (transcript, day 2, page 52).
The Applicant’s son will turn 18 in approximately twelve years’ time, and given this substantial length of time, he would most likely benefit from having his father in his life. The following evidence from the Applicant’s former partner at the hearing suggests that the Applicant has had a positive impact on his son through the contact they have had over the past few months (transcript, day 2, page 54):
SENIOR MEMBER: … And then how does [the child] feel about his dad?
APPLICANT’S FORMER PARTNER: He loves it. [The child] really struggled – when he started kindy, he was there for a little bit and then he realised that other kids have dads and it started to – that’s when he started to ask a lot of questions and he always wanted to go visit his dad and, you know, I just – I couldn’t tell him his dad was in prison. I would just say that he lived heaps far away. But since he has had contact with his dad, he’s so much happier, like, that he has his own male figure, and they, you know, talk about their boys’ things and – like, I – I see the difference in [the child] just from having his dad around now and not even – like, just the last few months or so, like, they have really built up something, and I think it’s a positive thing. I do.
The Applicant’s former partner further stated that although she did not think he was a good role model when he was a drug user, “I believe he would be a great role model for [the child] when he’s clean though” (transcript, day 2, page 56).
If the Applicant continues to remain abstinent from drugs and does not re-offend,
the Tribunal finds that he is likely to play a positive role in his son’s life in the future (paragraph 13.2(4)(b) of Direction No 79).
The Applicant’s conduct has not directly had a negative impact on his son
(paragraph 13.2(4)(c) of Direction No 79). If the Applicant were to re-offend in the future,
it would undoubtedly have a negative impact on his son who will face the prospect of being separated from his father after re-establishing a relationship. If the Applicant were to commit a domestic violence offence against the Applicant’s former partner, it may also negatively impact on his mental wellbeing and development.
If the Applicant were to be removed from Australia, the effect of any separation from his son would likely be detrimental. Although it would be possible for the Applicant and his son to continue to communicate on the phone, or via Facetime or other electronic means of communication, his son would be deprived of having an in person relationship with his father, if the Applicant is returned to New Zealand. The Applicant would not able to be present, and support his son during important milestones such as birthdays, sporting events, school assemblies and the like during the child’s formative years.
The Applicant’s former partner has submitted a letter to the Tribunal stating that her
six year old son has behavioural issues, as well and sensory and emotional regulation issues and that she is struggling without having the Applicant’s support (see statement from the Applicant’s former partner in Exhibit 3). She stated that the child is currently being assessed by paediatricians, including for attention deficit hyperactivity disorder.
These are further reasons as to why the child would benefit from having both parents to support him through these developmental and behavioural issues. Although the Applicant and his partner had a problematic relationship in the past, both have expressed a sincere intention to put aside their differences so they can co-parent their son, including a willingness to attend family counselling (see, for example, letter from Applicant’s former partner in Exhibit 3). The Applicant’s son would be deprived of having the involvement of both parents in his upbringing if the Applicant is returned to New Zealand (paragraph 13.2(4)(d) of Direction No 79).
In a letter to the Tribunal, the Applicant’s former partner states that she and the Applicant “have a six-year-old son who is aboriginal” (in Exhibit 3). Also, in a statement to the Tribunal (also in Exhibit 3) the Applicant stated, “My son is aboriginal…” The Tribunal does not have any further information about Applicant’s son being aboriginal, or any submissions regarding its significance.
The Applicant’s former partner has had the care of the Applicant’s son whilst he has been in prison and immigration detention and takes good care of him (paragraph 13.2(4)(e) of Direction No 79). However, as noted above, her evidence was that she is struggling raising the Applicant’s son by herself, particularly due to his behavioural issues, and is keen for the Applicant to be a part of his son’s upbringing.
There are no known views of the child before the Tribunal (paragraph 13.2(4)(f) of Direction No 79).
There is no evidence that the Applicant has abused or neglected his son in any way, and so paragraph 13.2(4)(g) of Direction No 79 is not applicable.
Similarly, there is no evidence that the Applicant’s son has suffered or experienced any physical or emotional trauma arising from his conduct (paragraph 13.2(4)(h) of Direction No 79).
The Tribunal finds that the best interests of the Applicant’s six year old son weighs very strongly in favour of the revocation of the Cancellation Decision.
16 year old step-daughter
The Applicant’s former partner has a 16 year old daughter from her previous relationship. For ease of reference, the Tribunal will refer to her as the Applicant’s
step-daughter. She lives with her mother and the Applicant’s son and is completing school part time (transcript, day 2, page 55). The child’s biological father passed away three years ago (transcript, day 2, page 48).
The Applicant is not the child’s biological father but described being her step-father since she was aged four to approximately 10 years of age, that he had a very close bond with her and regarded her as a daughter (transcript, day 1, page 16).
The Applicant’s evidence was that he has not seen his 16 year old step-daughter since 2015, and that he has spoken to her several times whilst he had been on a video call to his son, or his former partner, and that he last spoke to her on Valentines’ Day (transcript, day 1, page 32).
As the relationship is non-parental, and the Applicant did not have contact with his
step-daughter from 2015 until February this year, the Tribunal gives the relationship less weight (paragraph 13.2(4)(a) of Direction No 79).
There are two more years until the child turns 18, and according to the Applicant’s former partner, she has type 1 Diabetes and Hashimoto’s disease. The Applicant is likely to be a positive role model to his step-daughter, and may be able to provide assistance and support to assist the Applicant’s former partner with her upbringing, if he does not
re-offend (paragraph 13.2(4)(b) of Direction No 79).
The Applicant’s conduct has not directly had a negative impact on his step-daughter (paragraph 13.2(4)(c) of Direction No 79).
With respect to the likely impact of any separation if the Applicant was returned to

New Zealand (paragraph 13.2(4)(d) of Direction No 79), when asked about the impact on his 16 year old step-daughter if the Applicant were to be returned to New Zealand,

the Applicant’s former partner stated that, “I don’t think it would have as much of an impact on [her] because it is not her real dad, so at the end of the day it’s not going to affect her as much as it will affect [the Applicant’s six year old son]” (transcript, day 2, page 55). It is also likely that contact could be maintained in other ways, for example by telephone, the Internet or other electronic means.
The Applicant’s former partner currently fulfils a parenting role in relation to her (paragraph 13.2(4)(e) of Direction No 79).
There are no known views of the Applicant’s step-daughter before the Tribunal (paragraph 13.2(4)(f) of Direction No 79).
There is no evidence that the Applicant has abused or neglected his step-daughter in any way, and so paragraph 13.2(4)(g) of Direction No 79 is not applicable.
There is no evidence that the Applicant’s step-daughter has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct (paragraph 13.2(4)(h) of Direction No 79).
Taking into account the above discussion, the Tribunal finds that the best interests of the Applicant’s 16 year old step-daughter weigh slightly in favour of the revocation of the Cancellation Decision.
Applicant’s four and two and a half year old nephews
There is minimal material before the Tribunal regarding the Applicant’s nephews.
They are the children of the Applicant’s surviving brother, and they live in Queensland.
The Applicant stated that his brother has sent him photos of the children, but he does not have a close relationship with his brother. The Applicant stated that although he has some photographs of the children, he lost contact with his brother and his family while he was in prison (transcript, day 1, page 18).
The Applicant met the oldest child several years ago but has not met the youngest child (transcript, day 1, page 18). The relationship is non-parental, the Applicant does not appear to have an ongoing relationship with the children (paragraph 13.2(4)(a) of Direction No 79), and although there are some years until the children turn 18 (paragraph 13.2(4)(b) of Direction No 79), they are cared for by their father, the Applicant’s brother (paragraph 13.2(4)(e) of Direction No 79). Consequently, if the Applicant were returned to New Zealand, it would not have a negative effect on his nephews. If the Applicant reconnected with his brother in the future, he would likely be able to maintain contact with his brother and nephews through telephone, the Internet or other electronic means (paragraph 13.2(4)(d) of Direction No 79).
The Tribunal finds that the best interests of the Applicant’s nephews do not weigh either for or against revocation of the Cancellation Decision. The Tribunal finds this consideration to be neutral.
Daughter of the Applicant’s friend
The only reference to this child in the material before the Tribunal is a passing reference in a letter of support for the Applicant from the child’s father contained in Exhibit 3.
The letter states, “Russell is like a brother to me and uncle to my daughter…
She absolutly [sic] addores [sic] him and he is great with her”. The age of this child is unknown. When asked about this child at the hearing, the Applicant stated that he became close to his friend’s daughter when he lived with his friend for approximately six months before his most recent term of imprisonment. He stated that he wrote the child
“a couple of letters while I was in prison, sent her out some drawings” (transcript, day 1, page 17). Similarly to the Applicant’s nephews, he does not appear to have an ongoing relationship with this child who is cared for by her father, and the Applicant could maintain contact with the child by the telephone, the Internet or other electronic means if he or the child wished to do so in the future.

The Tribunal finds that the best interests of the daughter of the Applicant’s friend do not weigh either for or against revocation of the Cancellation Decision. The Tribunal finds this consideration to be neutral.
In summary, the Tribunal has found that the best interests of the Applicant’s six year old son to weigh very strongly in favour of revocation of the Cancellation Decision. The best interests of the Applicant’s step-daughter weigh moderately in favour of revocation of the Cancellation Decision. The best interests of the other children (the Applicant’s nephews and the daughter of his friend) are neutral.
Third primary consideration: Expectations of the Australian community (paragraph 13.3 of Direction No 79)
Paragraph 13.3(1) of Direction No 79 provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Until recently there was a lack of clarity concerning the interpretation of this primary consideration, following the decision of Mortimer J in YNQY vMinister for Immigration and Border Protection [2017] FCA 1466 (YNQY) where Her Honour stated:
[76]In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at

[64]–[66]).
(Emphasis added.)
Subsequently, two decisions of the Federal Court adopted slightly different approaches to the interpretation adopted by Mortimer J in YNQY. These decisions were DKXY v Minister for Home Affairs [2019] FCA 495 (DKXY) and FYBR v Minister for Home Affairs

[2019] FCA 500 (FYBR).
In DKXY, Griffiths J stated that it was not “inevitable” that the primary consideration of the expectations of the Australian community would weigh against revocation (at [32]).
His Honour explained, at [31], that:
Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction…
(Original emphasis.)
In summary, Griffiths J was of the view that “The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant to the particular case” (at [33]). Hence, Griffiths J was advocating a broad approach where consideration has to be given to all the Applicant’s circumstances when considering the expectations of the Australian community, so it is not inevitable that the Australian community’s expectations would weigh against revocation.
On the other hand, in FYBR, Perry J, at [42], affirmed a narrower approach,
which appears to be more consistent with Mortimer J’s approach in YNQY:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.
Although Perry J referred to the statement of community expectations in the Direction to be a “norm” to be applied in “most cases”, it was not clear when circumstances would justify departure from that norm.
The Full Court of the Federal Court in FYBR v Minister for Home Affairs
[2019] FCAFC 185 (FYBR (FC)) considered the approach adopted by Mortimer J in YNQY. The Full Court’s decision was accurately summarised by Member Burford in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424 (Rehman), at [162]-[166], as follows:
162. On 24 October 2019 the majority of the Full Court of the Federal Court (Charlesworth and Stewart JJ; Flick J dissenting) in FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR (FC)) upheld the decision of Justice Perry in FYBR. Importantly, the Court essentially agreed with the approach in YNQY and accepted Justice Mortimer’s characterisation of this consideration as a “kind of deeming provision” – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC), [at 61],
per Charlesworth J; see also Stewart J [at 89]).
163. Again as noted above, while this case concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court’s consideration of the issue of “community expectations” is directly applicable to paras 6, 8 and 13.3 are relevant to this application.
164. While there is some difference in the approach to the question of construction of the relevant clauses, the majority Justices in FYBR (FC) agree that it is not for a decision-maker to make his or own [sic] her own assessment of the community expectations and to give that assessment weight as primary consideration but to identify the Government’s view about community expectations and to have due regard to that view. That view will be taken into account in considering the particular circumstances of the case and ultimately determining the exercise of the decision-maker’s discretion, taking into account all the primary and other considerations (Charlesworth J at [73]-[74]; Stewart J at [93] and [103]).
165. In FYBR (FC) Charlesworth J, held that (at [67]):
To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J... It is not for the decision maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”... For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day with respect of its subject matter.
166. Justice Stewart held, in similar terms (at [89] and [91]):
... The government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one, or even necessarily dominant, set of community expectations in this field....
The above contextual factors lead to 2 guiding considerations to the proper construction of Direction 65. First, “community expectation” as expressed normatively” [sic] are what the government says they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the government do not speak to the outcome of any particular case – they are to be understood and applied normatively.
167. Both majority Justices make the point that, as a primary consideration, “community expectations” are to be taken into account along with other factors to inform a decision-maker’s exercise of discretion. It follows that the ultimate decision may differ from community expectations. Community expectations are merely one of the three primary considerations to be taken into account. Further, both majority Justices note that if a decision-maker were to take account of every factor relevant to the decision to inform the content of community expectations this would render the process of weighing those other factors together with and against community expectations to be unworkable (see Charlesworth J (at [74]), Stewart J (at [91]-[93]).
168. Justice Charlesworth notes that it is necessary to determine the content of the deemed expectation not by reference to some factual inquiry but by reference to the paragraph itself. The task of the decision-maker is to identify the government view of community expectation and to have due regard to it (at [74]). Her Honour notes that the paragraph (at [73]):
Does not purport to preclude the decision maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision maker must necessarily do. The clause implicitly recognises that the decision-makers assessment as to whether or not the visa should be granted may differ from the expectations of the Australian community, as the government deemed those expectations to be.
169. Her Honour goes on to note the paragraph (at [75]-[79]):
75.Should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visas applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration.
...
79. The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such cases, the decision maker would depart from the relative ascription of weight for which

cl 8(4) “generally” provided, as he or she is permitted to do.
170. Justice Stewart summarises the “community expectations” as expressed in the Direction as follows (at [100]):
Non-citizens will obey Australian laws while in Australia;
It may be appropriate to refuse a visa application were [sic] noncitizen has breached, or where there has is an unacceptable risk that they will breach, the expectation that they will obey the law or were [sic] they have been convicted of offences in Australia or elsewhere;
In a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences are such that they should not be granted the visa...
His Honour goes on to state that (at [101]):
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law it will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
171. As noted above, although the Justices were considering the provisions with respect to visa refusal their comments are, in the Tribunals view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).
(Emphasis and footnotes omitted.)
Having regard to the judgments of Stewart and Charlesworth JJ in FYBR (FC),
the Tribunal must give effect to the norm stipulated in paragraph 13.3 of Direction No 79 (that the Australian community expects non-citizens to obey Australian laws whilst in Australia), which will, in most cases, weigh in favour of refusing to revoke the cancellation decision.
The Tribunal has found that the Applicant’s offending ranges between serious and very serious. For example, his drug trafficking offences are serious, his driving offences (collectively) are serious, his aggravated assault offence is very serious, and his breaches of court imposed orders, particularly the intervention order protecting his partner,

are serious (see discussion above regarding the first primary consideration). The Tribunal is guided by the principle in paragraph 6.3(2) of Direction No 79 which states that,

“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.” Paragraph 6.3(3) of Direction No 79, in summary, provides that non-citizens who have committed serious crimes, including crimes of a violent or sexual nature,

should generally expect to be denied the privilege of staying in Australia.
The construction of paragraph 13.3 of Direction No 79 confirmed in FYBR (FC),
together with these principles, supports the conclusion that the Australian community would expect the Applicant’s Visa to remain cancelled. Consequently, the Tribunal finds that the expectations of the Australian community would be that the Cancellation Decision should not be revoked.
The Tribunal will discuss the weight to be given to this consideration at the conclusion of these reasons for decision as part of the overall weighing exercise.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 79 provides:
(1)
In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant.

These considerations include (but are not limited to):
a)   International non-refoulement obligations;
b)   Strength, nature and duration of ties;
c)   Impact on Australian business interests;
d)   Impact on victims;
e)   Extent of impediments if removed.
International non-refoulement obligations
It is not relevant to consider international non-refoulement obligations (paragraph 14.1 of Direction No 79) because no such claims arose in any submissions or on the evidence before the Tribunal.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(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.
Further, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
As noted above, the Applicant arrived in Australia when he was two years of age,

and he returned to New Zealand as a six year old. He then returned to Australia when he was nearly seventeen year of age in 2001 and has resided in Australia since that time. Thus the Applicant has resided in Australia for approximately 19 years.
Although the Applicant arrived in Australia as a teenager, and has spent all of his adult years in Australia, he has made minimal positive contributions to the community.

He undertook some volunteer work whilst he was in prison in November 2017 and November 2018 packing Christmas packs for prisoners (see two letters from the Salvation Army in Exhibit 3). He began offending when he was approximately 20 years of age, within approximately three years of returning to Australia. He offended fairly consistently until his most recent period of imprisonment and immigration detention.
The Applicant’s former partner’s evidence was that the Applicant has not provided any financial support for his son to date (transcript, day 2, page 52) although the Applicant stated an intention to do so in the future. There is inconsistent evidence regarding the Applicant’s work history. The Applicant’s description of his work history at the hearing was that he had a “fair amount of work experience here in Australia” (transcript, day 1,

page 20) including in the automotive industry, at a wreckers, a timber mill, distributing milk for a dairy, and various types of farm work (transcript, day 1, page 19). However the Sentencing Judge for the drug trafficking offences described the Applicant as having

“had a ‘patchy’ and disrupted employment history” (Exhibit 4, page 2; G11, page 52).
The Applicant also referred to his mother and brother being buried in South Australia as being a further emotional tie he has to Australia (G17, page 98). The Applicant stated that his brother died in a car accident on his way to work on 19 November 2016 and that he was not permitted to go to his funeral or to say goodbye due to being in prison at the time (G14, page 75).

As noted above, the Applicant’s young son, who is an Australian citizen and aboriginal,

is in Australia. His former partner, who is his son’s mother, also resides in Australia.

As discussed above in the section on the best interests of the child, the non-revocation of the Cancellation Decision would have a negative effect on the Applicant’s young son,

who has behavioural and other difficulties and is being assessed for behavioural and developmental issues including autism and ADHD. The Applicant’s son recently resumed contact with his father in approximately December 2019, with the Applicant’s former partner reporting a positive impact on her son. As will be discussed below, the non-revocation of the Cancellation Decision would also have a negative impact on the Applicant’s former partner, who is unemployed and a single mother of the Applicant’s six year old aboriginal son, and another 16 year old child from a former relationship who also has health issues. If the Applicant is permitted to stay in Australia, it is likely that he may be able to assist to relieve some of the emotional and financial impact (if he is able to obtain employment) on his former partner of bringing up these children on her own.

The Tribunal finds that the Applicant’s young son represents a particularly close tie to Australia, as does (but to a lesser extent), his former partner and step-daughter.
The Applicant has a brother in Queensland who was born in Australia, and who has his own family. As noted above, the Applicant does not currently have a close relationship with his brother, and stated that they lost contact while he was in prison.
The Applicant described having “a great group of friends and support network here in the Australian community” (G14, page 84). As discussed above, these friends submitted letters of support for the Applicant (in Exhibit 3), each expressing a strong desire for the Applicant to remain in Australia. For example, one friend stated, “I… will support Russell in any way possible”. Another friend stated, “If he is successful in his application to stay in Australia me and my family are here for him, we will help and support him in which ever way possible”. Further, another friend stated, “I offer Russell my full support and help with whatever he needs once released [sic] he is a true friend to me…” These statements are indicative that the Applicant has strong ties in the form of friendships in the community over many years.
The Tribunal finds that the Applicant has close ties to Australia, particularly with respect to his having resided in Australia for the entirety of his adult life, and his six year old aboriginal son residing in Australia. He also has close friends in the community who are willing to offer him support. The Tribunal finds that this consideration weighs strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
There is no impact on Australian business interests if the Cancellation Decision is not revoked, and so paragraph 14.3(1) of Direction No 79 is not relevant.
Impact on victims
Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The victim of the Applicant’s 2016 aggravated assault offence was his former partner

(and the mother of his son), and she was also the person protected by the intervention orders that were breached. Her evidence was that it would negatively impact her if the Applicant were returned to New Zealand because she is an unemployed single mother who is struggling with bringing up her two children alone, particularly given the behavioural and developmental issues that the Applicant’s six year old son is having,

and is presently being assessed for.
She was also anxious for son not to be separated from the Applicant because they had just re-commenced a relationship (transcript, day 2, page 48) and was evidently concerned about the negative impact that the Applicant’s removal would have on her child. The Applicant’s former partner also believes that the Applicant will help her financially, which, if he is able to do so, may relieve some of the burden on her with respect to bringing up the Applicant’s six year old son (transcript, day 2, page 54).
The Tribunal accepts that the Applicant’s former partner would suffer some detriment if the Cancellation Decision is not revoked. Consequently, this consideration weighs moderately against the revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)     The non-citizen’s age and health;
b)     Whether there are substantial language or cultural barriers; and
c)     Any social, medical and/or economic support available to them in that country.
The Applicant is now 35 years of age. His evidence was that he injured his left hand in a workplace accident in approximately 2016, resulting in nerve damage and an inability to hold a coffee cup (transcript, day 1, page 20). The Applicant stated that as the damage is permanent, he does not need ongoing medical treatment for it. The Applicant stated that he had a history of depression in the past (transcript, day 1, page 20):
I struggle – I struggle with depression. I guess I didn’t realise that I was struggling with depression. When I was unable to see my son, I didn’t really know what depression was, and it wasn’t till I was off the drugs and in jail that – when my brother died, I was made to see a counsellor and then I was referred to the doctors, and they diagnosed me as – with depression and I was on tablets for about 12 months while I was in prison, continuously speaking with the guidance of the social worker in prison. I’m currently in a fit state. I’m – I don’t see myself as depressed anymore. I was just going through a very difficult time with my brother passing and not being allowed to go to the funeral.
The Applicant’s physical injuries may reduce his employment prospects given that his work experience primarily consisted of manual and mechanical labour. This, in turn, may be an impediment to his re-establishing himself, including securing accommodation and maintaining a basic standard of living. The Tribunal is also concerned that, given the Applicant’s history of depression and drug use when he is experiencing life stressors, if he is returned to New Zealand and is unable to be a part of his son’s upbringing, he may experience psychological distress, and there would be a risk that he may relapse to drug use.
There are no language or substantial cultural barriers that would be impediments to the Applicant returning to New Zealand. New Zealand is also not unfamiliar to the Applicant because he lived there when he was aged from six to nearly 17 years. However, despite the likelihood that the Applicant would have access to the same economic support, including health services, and social security, as other citizens of New Zealand, there are associated uncertainties which arise as a result of the COVID-19 pandemic. The Applicant raised the following concerns when asked about “extent of impediments if removed” (transcript, day 2, page 71) at the hearing:
I don’t think there’ll be any help at the moment in New Zealand for me. I don’t know anybody over there. I have no ties to family or means of employment and with the COVID virus going on at the moment there’s be no jobs going. I’m not [sic] how I’d go finding housing, whether I’d end up on the streets…
The economic uncertainty of the pandemic may impact on the Applicant’s ability to find employment and on the Applicant’s ability to access support services to assist him to resettle in New Zealand and to find housing, although the extent of this impact is uncertain.
The Applicant is also concerned about impact on his relationship with his son due to border closures as a result of the pandemic, because his son, who is an Australian citizen, would not be able to visit him in New Zealand.
The Applicant also has no apparent social support in New Zealand. His evidence was that he does not have any family or friends in New Zealand. His father resides there,

and he has previously resided with his father for a short period before the Applicant returned to Australia in 2001. The Applicant’s evidence was that he has no ongoing contact with his father, whom he has not seen since he was approximately 16 years of age (transcript, day 1, page 23).
On balance, the Tribunal finds that the Applicant may encounter some difficulties establishing himself, and maintaining a basic standard of living, if he were to return to New Zealand. Although the duration and impact of the COVID-19 pandemic is uncertain, it is likely to enhance the difficulties and uncertainties which the Applicant would face in

re-establishing himself upon return. A further complexity is that there may be a delay in the Applicant being returned until the COVID-19 pandemic abates. This is discussed separately below.
Overall, this consideration weighs slightly in favour of the revocation of the Cancellation Decision.
Detention until removal is reasonably practicable
If the Tribunal affirms the Reviewable Decision, the Respondent conceded that it is unlikely that the Applicant’s removal to New Zealand will be reasonably practicable

(as required under s 198 of the Migration Act) for the immediately foreseeable future during the COVID-19 pandemic. He will therefore be detained in immigration detention for an uncertain timeframe. The Applicant also expressed a fear of being “…stuck in detention indefinitly [sic]” in his written submissions on the COVID-19 pandemic.
The Applicant also stated that he was fearful of catching the virus in immigration detention (transcript, day 2, page 73). In his written submissions on the COVID-19 pandemic the Applicant also stated that he was “very scared and worried… [because]…If the covid 19 [sic] virus is brought into detention it will spread like wild fire…”
The Tribunal accepts that if it affirms the Reviewable Decision, the Applicant will face an additional period of detention before it will be reasonably practicable for him to be removed to New Zealand. However, to quote Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294) at [299]) “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
The Tribunal finds that these factors weigh slightly in favour of the revocation of the cancellation decision.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(i)The nature and seriousness of the Applicant’s conduct weighs strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79).
(ii)The risk to the Australian community should the Applicant commit further offences weighs moderately in favour of the Tribunal refusing to revoke the Cancellation Decision (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of

Direction No 79), weighs moderately to strongly in favour of the Tribunal refusing to revoke the Cancellation Decision.
With respect to the best interests of minor children primary consideration (paragraph 13.2 of Direction No 79), the Tribunal finds that the best interests of the Applicant’s:
(i)Six year old son weigh very strongly in favour of the revocation of the Cancellation Decision.
(ii)16 year old step-daughter weigh slightly in favour of the revocation of the Cancellation Decision.
(iii)Two minor nephews and the daughter of the Applicant’s friend are neutral and do not weigh either for or against the revocation of the Cancellation Decision.
In relation to the other considerations that are applicable:
(a)The strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weigh strongly in favour of the revocation of the Cancellation Decision.
(b)The impact on victims, namely the Applicant’s former partner, weighs moderately in favour of the revocation of the Cancellation Decision.
(c)The impediments the Applicant would face if returned to New Zealand weigh slightly in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79).
(d)The uncertain period of detention that the Applicant may face until the COVID-19 pandemic subsides weighs slightly in favour of the revocation of the Cancellation Decision.
The Tribunal has found that that the expectations of the Australian community would be that the Cancellation Decision should not be revoked. In determining the weight to be applied to this consideration, the Tribunal has considered the primary considerations, including the serious to very serious nature of the Applicant’s offences, and his low to moderate risk of reoffending. The Tribunal has balanced these considerations against the considerations which weigh in the Applicant’s favour. Specifically, these are: the primary consideration of the best interests of the Applicant’s six year old aboriginal son which weigh strongly in favour of revocation of the Cancellation Decision; the interests of his step-daughter which weigh slightly in favour of revocation of the Cancellation Decision and the interests of his victim (the Applicant’s former partner) which weigh moderately in favour of the revocation of the Cancellation Decision. Additionally, the strength, nature and duration of the Applicant’s ties to Australia, the hardship the Applicant would face if he were returned to New Zealand, as well as the uncertainty of the impact of the COVID-19 pandemic including the amount of time the Applicant may potentially be detained for until he can be returned to New Zealand, are also considerations which weigh (to the degrees stated above) in the Applicant’s favour. After balancing these considerations, the Tribunal finds that the expectations of the Australian community would weigh moderately against the revocation of the Cancellation Decision (paragraph 13.3 of Direction No 79).
The Tribunal finds that the primary consideration of the best interests of the Applicant’s six year old son substantially outweighs the other primary considerations of the protection of the Australian community and the expectations of the Australian community. The other considerations which weigh in favour of the Applicant, including the Applicant’s strength, nature and duration of ties to Australia, the impact of removal on his former partner,

the extent of impediments if removed, and his detention for an uncertain period until he can be removed further add to this weight, and to the Tribunal being satisfied that there is another reason to revoke the Cancellation Decision.
Having had regard to all of the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 171 (one hundred and seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.........................[sgd]............................................
Associate
Dated: 9 April 2020

Dates of hearing:

30 and 31 March 2020

Representative for the Applicant:

Representative for the Respondent:

Self-represented

Ms E Tattersall, Sparke Helmore Lawyers