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

[2020] AATA 5372

MGRD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5372 (24 December 2020)

Division:GENERAL DIVISION

File Number:          2020/6133

Re:MGRD  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:24 December 2020

Place:Brisbane

The decision under review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant’s visa be exercised.

...................[SGD].......................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Five Year Resident Return (Class BB)(Subclass 155) visa –  where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79  – drug addiction – possession of drugs for a commercial purpose – decision under review – set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

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

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Rebecca Bellamy

24 December 2020

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 40-year-old citizen of Ireland. In November 2001, when he was 21 years old, he moved to Australia. The most recent visa granted to him was a Five Year Resident Return (Class BB) (Subclass 155) visa (“visa”).[1]

   [1] Exhibit G1, Section 501 G-documents, G19, page 307.

2. On 1 April 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 24 April 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 1 October 2020, the Respondent decided not to revoke the cancellation.[4]

   [2] Ibid, G20, pages 308 to 314.

   [3] Ibid, G6, pages 32 to 37.

   [4] Ibid, G4, page 18.

3. The Applicant subsequently lodged an application for review in this Tribunal on 8 October 2020.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5] Ibid, G2, pages 3 to 8.

4. The hearing of this application proceeded on 7 December and 8 December 2020. The Applicant gave evidence via videoconference. His wife also gave evidence via videoconference and an ex-employer and Professor James Freeman, psychologist, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

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

   4The Minister may revoke the original decision if:

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

   (b)the Minister is satisfied:

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

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

6. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]

   “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]

   [6] [2018] FCAFC 151.

   [7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

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

   ·whether the Applicant passes the character test; and

   ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

8. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]

   [8] Ibid.

   Does the Applicant Pass the Character Test?

9. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

10. On 9 January 2019, the Applicant was sentenced to concurrent terms of imprisonment with an effective head sentence of eight years and two months with a non-parole period of two years. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

11. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

12. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

13. Paragraph 7(1) of the Direction provides that:

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

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[9]

    [9] The Direction, sub-paragraph 7(1)(b).

14. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...

15. Part C provides for the decision-maker to take into account “Primary Considerations”[10] and “Other considerations”.[11] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

    [10] The Direction, paragraph 13.

    [11] The Direction, paragraph 14.

16. The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

17. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns , the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13]

    [12] [2018] FCA 594.

    [13] Ibid, [23].

    BACKGROUND AND OFFENDING

18. The Applicant was born in Dublin, Ireland and following the separation of his parents when he was two, he moved with his mother and siblings to the United Kingdom while his father remained in Ireland.[14]

    [14] Exhibit G1, Section 501 G-documents, G8, 55.

19. He met his now wife, who is an Australian citizen, in London in around 1999. The Applicant moved from Australia in November 2001 when he was 21 years old to join her for the birth of their first child, who was born in February 2002. He obtained employment almost immediately as a general labourer and subsequently as a plasterer. He has never relied on government income support while in Australia.[15]

    [15] Ibid, G8, page 58, paragraph 52; Transcript, page 6, line 43 to 45; page 7, line 29.

20. He was granted a Partner Visa (subclass 801) (Permanent) in 2004 and he and his wife married in 2006. Their second child was born in June 2007.

21. The Applicant has no criminal history in Ireland or the United Kingdom.[16]

    [16] Exhibit A2, Applicant’s Further Evidence, page 12.

22. The Applicant has committed some traffic infringements.[17] In December 2012, when he was 32 years old, he failed to stop at a ‘stop’ sign at an intersection. Between then and August 2014, he was caught speeding on four occasions. He was ordered to pay fines for each offence and in September 2014 he was placed on a period of good driving behaviour for 12 months. In October 2016, the Applicant committed a further speeding offence. The speeding offences all involved speeds that were less than 20kmph over the speed limit. On 29 January 2017, the Applicant was caught driving without a license. While these offences are not at the serious end of the spectrum, they do indicate a somewhat cavalier attitude to the authority that governs the use of our roads. In September and December 2017, when the Applicant was addicted to methamphetamine, he committed two more speeding infringements.    

    [17] Exhibit R2, Respondent’s Supplementary Documents, page 99.

23. The Applicant and his wife had a mortgage and his children were attending private schools. He had suffered injuries to his knees since 2003 and had knee surgery in 2003, 2007, 2012 and 2016.[18] On each occasion he had to take time off work which caused financial stress despite his wife working overtime to try to make ends meet.[19] After his fourth knee surgery, he received Workcover payments that covered 60% of his income.[20] His wife left her work in November 2016 due to a toxic work environment.[21] They were behind on school fees,[22] and spent some of the money that was set aside to pay income tax. The Applicant was therefore trying to manage a debt with the ATO.[23] He was experiencing excruciating pain and swelling in his knee, the prescribed pain killers were not working and with respect to  physiotherapy and acupuncture, he had reached the limit of what his health fund would cover.[24]

    [18] Exhibit G1, Section 501 G-documents, G8, page 61, paragraph 77

    [19] Ibid, G8, page 61.

    [20] Transcript, page 8, line 14 to 15

    [21] Transcript, page 101, lines 25 to 31.

    [22] Transcript, page 48, line 5 to 6.

    [23] Exhibit G1, Section 501 G-documents, G8, page 58, paragraph 51.

    [24] Ibid, G8, page 62; Transcript, page 8 to page 9, line 9.

24. After three or four months, the Applicant returned to work because of his financial situation but he was unable to bend down or perform some tasks that were expected of him and he ended up losing his job. He got work wherever he could, but it was not as much as when he had been employed. Being in constant pain was mentally and physically exhausting, it limited what help he could be around the house and what he could do with his children, and lead to feelings of depression and anxiety.[25]

    [25] Ibid, G8, page 63, paragraph 88; Transcript, page 9, line 10 to 24.

25. In May 2017, a friend in the construction industry, who the Applicant considered to be a respectable family man, advised him to try methamphetamine for pain relief so that he could return to work. The Applicant did try it. He felt instant relief and was able to work.[26] At first the effect lasted for a week. After a time, the effects only lasted three to four hours.[27] By mid-2017 he was addicted,[28] and his only thoughts were about feeding his habit. He did cash jobs so he could purchase the drug without his wife finding out.[29] His habit caused more financial strain and he started staying away from home some nights.[30] He neglected his wife and children.[31]

    [26] Ibid, G8, page 63.

    [27] Transcript, page 10, line 42 to page 11, line 6.

    [28] Exhibit G1, Section 501 G-documents, G8, page 54, paragraph 9.

    [29] Transcript, page 11, line 15 to 19.

    [30] Exhibit G1, Section 501 G-documents, G8, page 64, paragraph 97.

    [31] Ibid, G8, page 64, paragraph 96

26. The applicant’s wife described his behaviour during that time as “He became argumentative, he was never home or had much time or interest in his family and was verbally abusive. Never in all our time together had he displayed any of these characteristics before.”[32] The Applicant said his main focus became getting drugs and that he lost sight of who he was as a person. He reached the point where he was asking drug dealers for drugs and telling them that he would pay them later, which he said they were more than willing to do.[33]        

The first offending episode

[32] Exhibit G1, Section 501 G-documents, G8, page 89, paragraph 21.

[33] Transcript, page 11, line 45 to page 12, line 4.

1. Around 12:20am on 4 September 2017, police detected the Applicant alone in his car in an isolated area of the Gold Coast. A search of the car revealed:

   ·a quantity of loose, chopped cannabis;

   ·a container containing two clip seal bags containing 0.408g and 0.667g, respectively, of methamphetamine;

   ·a clip seal bag wrapped in a paper towel and rubber bands containing 2.55g of cocaine; and

   ·two mobile phones.

2. In a backpack in the boot, police found:

   ·a clip seal bag containing 0.254g of cocaine;

   ·a plastic bag containing 19.02g of cannabis;

   ·a spray can containing four tablets of MDA;

   ·a clip seal bag containing 1.028g of MDMA;

   ·a clip seal bag containing 1.947g of a substance containing MDA;

   ·a clip seal bag containing 2.622g of cocaine;

   ·$2200 in cash bundled neatly and held together with rubber bands; and

   ·a double-edged knife.

3. In the rear foot well of the car, they found a black spray paint can containing nine clip seal bags containing methamphetamine in various amounts. Around the front passenger seat of the car, they found a Samsung mobile phone and a glass smoking pipe.[34]

   [34] Exhibit R2, Respondent’s Supplementary Documents, pages 90 to 95.

4. The Applicant admitted to police that he was in possession of the cannabis and cocaine located in the esky, but he denied knowledge or ownership of the other illegal drugs and items. He said the car belonged to his wife, and that he did not usually drive it. He said he was not currently living with his wife, and that she was not aware that he had taken her car. He gave no explanation for being parked where he was after midnight. I note that the Applicant was, in fact living with his wife in the family home at that time.[35] 

   [35] Transcript, page 35, line 35 to 47.

5. Later on 4 September 2017, police searched the Applicant’s home and found in a spare room where the Applicant sometimes slept:[36]

   ·a clip seal bag containing approximately 29.5g of cannabis and a container containing cannabis seeds;

   ·a wallet containing a clip seal bag containing approximately 0.84g of cocaine;

   ·a box containing digital scales;

   ·an electric grinder, and two manual grinders; and

   ·an Irish Passport in the Applicant’s name.[37]

   [36] Transcript, page 36, line 1 to 15.

   [37] Exhibit R2, Respondent’s Supplementary Documents, pages 90 to 95.

6. The Applicant was arrested and charged with 11 offences arising from his possession of the drugs, weapons and the drug related items. He was granted bail.

7. In his revocation request, the Applicant said that the dealers who had been selling him drugs on credit had threatened that there “would be consequences” if he did not pay his debt. He was told that the only option, if he could not pay, was to transport a bag to a location. He said he initially resisted but became desperate when the dealers increasingly put pressure on him to repay his debt. He said at the same time his habit was all consuming and he needed drugs to wake up and keep him going through the day. Eventually he agreed to take the drugs for the dealers.[38] In the hearing the Applicant said that the dealers offered him an “option” which was that he could look after some drugs for them and deliver them somewhere, and they would pay him in drugs.[39] He said the methamphetamine was his payment and he was to hold on to the other drugs and wait for details as to where he was supposed to take them.[40] He said that on a different occasion his supplier had asked him to store some drugs and items and that those were found by police in his home.[41] He said methamphetamine “has a way of making you make real questionable choices, changes your personality almost. But, yes, I knew that I was breaking the law, yes.”[42]

   [38] Exhibit G1, Section 501 G-documents, G8, page 64, paragraphs 99 to 102.

   [39] Transcript, page 12, line 17 to 20.

   [40] Transcript, page 12, line 27 to 30.

   [41] Transcript, page 37, lines 21 to 25; page 38, line 12 to 17.

   [42] Transcript, page 12, line 40 to 46.

8. When asked how much he owed when these threats were made, the Applicant conceded that the debt was only around $1,000.[43] He then said he did not think the supplier was “worried too much about the money, he was - he was just trying to get me more drugs which was enough for me at the time, at that point in my addiction, that’s all that mattered to me.”[44] The Applicant was asked if he committed the first set of offences not because he was frightened but because he wanted to maintain his relationship with his supplier, to which he said “I think a bit of both”.[45] Ultimately he conceded that he committed the offences for personal gain in terms of obtaining drugs rather than because he was being stood over.[46]

   [43] Transcript, page 34, line 16 to 18.

   [44] Transcript, page 34, line 30 to 34.

   [45] Transcript, page 34, line 40 to 44.

   [46] Transcript, page 39, line 26 to 32.

1. Given the clip seal bags, grinders, scales and array of drugs found in the Applicant’s possession, one might suspect that he was dealing drugs rather than transporting them. I put this to the Applicant, and he denied it. The police did not find any ledgers and it does not appear that they made efforts, beyond asking the Applicant to examine his mobile phone/s for messages indicating drug supply. When the Applicant was ultimately convicted in relation to these offences, the learned sentencing Judge found that he possessed the drugs for a commercial purpose, however he did not make a finding that the Applicant possessed the drugs with the intention of supplying them to members of the community. In the hearing the Applicant denied that he had ever sold drugs or introduced them to any member of the community except his wife.[47] I am prepared to accept the Applicant’s evidence on this, and I accept that the drugs, weapons and drug related items that were found in his car and in his home had been given to him for the purpose of transporting them to someone else, except for some drugs that were for his personal use. I further find that the Applicant agreed to do that primarily because he wanted to preserve his relationship with his suppliers so he could continue to feed his addiction.

   [47] Transcript, page 16, lines 13 to 18.

2. Following the police search of the home, the Applicant told his wife that he had been using methamphetamine.[48] Until that time, as she had not been around any drug users before she did not realise he was using drugs. She had interpreted his behaviour as lack of interest in the marriage and possibly wanting to leave the marriage.[49]

   [48] Transcript, page 102.

   [49] Transcript, page 115, lines 8 to 18.

3. The Applicant tried to stop using methamphetamine but quickly relapsed. Not only that, he introduced his wife to methamphetamine, wanting her to understand “how it was so good” for him. He said he was in complete denial at that time about how methamphetamine was destroying him.[50] He has expressed extreme shame that he did this to his wife.

   [50] Exhibit G1, Section 501 G-documents, G8, page 65, paragraphs 103 to 104.

4. Around December, the Applicant’s wife gave him an ultimatum requiring him to choose between drugs and his family. He was unable to commit to giving up methamphetamine, so his wife threw him out.[51] He again tried to give up methamphetamine, but he was still socialising with drug users and he relapsed after two weeks.[52]

   [51] Ibid, G8, pages 65, paragraph 105.

   [52] Ibid, G8, page 65, paragraphs 106 to 107.

5. The Applicant said that in around January 2018, he gave up methamphetamine for good. He said he broke up a lot of long-term friendships in the process, some of which had been more than 15 years in duration. The Applicant described giving up methamphetamine as extremely difficult. He said it was constantly on his mind, and in his thoughts daily. He tried to keep himself busy and surround himself with better people. He spent a lot of time at home with his wife and children. He said methamphetamine “leaves a deep impact on your brain that (sic) small things can trigger relapses”.[53] He suffered withdrawal symptoms including anxiety and depression, and he struggled to resume a normal sleeping pattern.[54] In addition to changing his lifestyle and started spending time with his children again. He was thinking about moving away from Brisbane for a fresh start and to get away from the drugs, people and places associated with methamphetamine.[55]

   [53] Transcript, page 14, lines 29 to 44.

   [54] Transcript, page 15, line 128.

   [55] Exhibit G1, Section 501 G-documents, G8, page 65, paragraph 107.

6. Following his arrest, the Applicant breached his bail conditions on three occasions and on one occasion he contravened a direction or requirement. These contraventions occurred between October 2017 and February 2018 and concerned the Applicant failing to report to police in association with his bail undertaking. He was sentenced for these contraventions in three separate sentencing episodes on 8 November 2017, 22 November 2017 and 26 February 2018. He received fines, with no convictions recorded.[56]

   [56] Ibid, G12, pages 291 to 293.

7. On 5 March 2018 the Applicant’s license was disqualified for one month as a result of the unlicensed driving offence from January 2017.

8. The following day, he was caught speeding while travelling north along the Bruce Highway.  The police searched his car and found:

   ·in a backpack:

   oa small container wrapped in paper towel and rubber bands, containing an odourless blue liquid;

   o$1890 in cash;

   ocigarette papers; and

   oa Blackberry mobile phone

   ·in the centre console of the car:

   otwo mobile phones (including one Blackberry);

   oa container holding cannabis; and

   oa container holding remnants of cannabis and a pair of scissors;

   ·in a pocket in the driver's door of the car, an extendable baton;

   ·in a sports bag in the rear of the car:

   oclip seal bags containing methamphetamine, cocaine and MDMA;

   oa clip seal bag containing nine diazepam tablets;

   oa clip seal bags and syringes;

   oa grinder containing cannabis remnants;

   othree containers wrapped in paper towel holding an odourless blue liquid;

   oone container wrapped in paper towel holding a clear liquid;

   oa drink bottle holding a blue liquid; and

   oa set of digital scales; and

   ·in a sunglasses case in the rear of the car, a glass pipe.

9. The Applicant’s fingerprints were located on one of the containers and one of the clip seal bags. The two Blackberry phones were password protected and the Applicant refused to provide the passwords. The Applicant told the police the cash was from his job as a builder.

10. The total quantities of drugs found were:

    ·Methylamphetamine - 269.105g;

    ·Cocaine - 47.783g;

    ·MDMA - 1.929g;

    ·Cannabis - 4.1g;

    ·Diazepam - 1.517g; and

    ·GHB (gamma-butyrolactone) - 2.094 kg

11. The Applicant was arrested and charged with 13 offences including six counts of drug possession, two counts of supplying drugs, possession of the glass pipe, unlawful possession of weapons and three property related drug offences in relation to the possession of the cash, mobile phone, grinders and digital scales. He was remanded in custody.

12. In his revocation request, the Applicant said that prior to this offending episode, he was being threatened by the drug dealers again. He said they knocked on his door a couple of times very late at night and he tried to persuade them that he was back working and could repay them over time. He said they started to escalate their threats and he knew they carried guns and weapons. He said:

    “They were really violent people and I knew they were capable of carrying out the threats on my family… There did not seem to be any way out as I did not have any other means of repaying their debts. I could not go to the police for fear of what the dealers would do to me and my family. I was still recovering from my addiction and dealing with all the physical symptoms of withdrawals from the drugs like body aches and insomnia. My stress and anxiety was through the roof. I was worried to go to work and leave my family at home without me for fear that the dealers would come for them. After the dealer came to my house again and said my time was up, I agreed to do a second supply for the drug dealers that occurred on 6 March 2018. I was told where my destination was and the time I had to be there. They took the keys to my car and then returned an hour later. I was told that all I needed to do was drive the car to Mackay and my debt would be clear. At this stage, I owed around $2000.”[57]

    [57] Exhibit G1, Section 501 G-documents, G8, paragraphs 108 to 110.

13. In the hearing the Applicant said that he was not paid for transporting the drugs. Rather, he was told that if he made the delivery, his debt would be cleared and he could walk away.[58] At one stage, he seemed to suggest that the debt was more than $2000, and that he was expected to compensate the dealers for the drugs that had been forfeited in September 2017.[59] However, when probed about this he conceded that the dealers had never put a value on those drugs and that his understanding was that if he could pay $2000 the debt would go away.[60]

    [58] Transcript, page 16, line 7 to 11.

    [59] Transcript, page 47, line 10 to 14.

    [60] Transcript, page 47, line 35 to 42.

14. At the time of this offending, the Applicant and his wife owned three cars and the Applicant said that perhaps one of them was subject to finance. When asked why he committed the offences rather than selling a car he said he made a snap decision under pressure.[61] When asked if he had considered renegotiating his mortgage or asking to delay paying school fees schools fees in order to pay the $2000, he said that he was already behind with school fees and he did not think the bank would help.[62] When it was put to him that he made the decision to commit the second set of offences with a clear head he said:

    “I was still struggling with use, trying to get clean, yes. I would - I knew what I was doing was wrong, but I believed to be the quickest solution for me to get dangerous people away from my family.”[63]

    [61] Transcript, page 51, line 41 to 45.

    [62] Transcript, page 48, lines 1 to 11.

    [63] Transcript, page 48, line 21 to 25.

15. When it was put to the Applicant that he said he gave up methamphetamine for good in January 2018 he said he may have slipped up a couple of times,[64] but that he was clean for at least a month or two before the second set of offences.[65]

    [64] Transcript, page 48, line 30 to 35.

    [65] Transcript, page 49, line 24 to 27.

16. Since his arrest for the second offending episode, his supplier has not approached him to compensate them for the lost drugs and other items or to repay his debt, in fact they have not contacted him at all. Nor did they contact his wife despite knowing the address of the family home.[66]

    [66] Transcript, page 16, line 24 to 25; page 53, lines 44 to 45.

17. When the Applicant was sentenced for this offending, he did not put forward that he had done it because he and his family had been threatened, but he did put forward other matters explaining his offending such as his reason for using methamphetamine in the first place. When asked in the hearing why he did not tell the court that he had been threatened, his answer was unsatisfactory. He said he did not think it was relevant at the time and he did not know if “they” could get to him in prison.[67]

    [67] Transcript, page 53, line 9 to 31.

18. When the lawyer for the Respondent pointed out that the Applicant was caught with almost $2,000 and that his debt was $2,000, he said “I’m not saying that it is logical. Obviously, I’ve got children to feed as well. I’ve got bills to pay, yes”.[68]

    [68] Transcript, page 52, line 25 to 28.

19. In re-examination, the Applicant gave evidence that, at the time, he felt under duress and that he had no other option than to commit the offences.[69] He said he did not think that simply paying the debt was an option.[70] The latter statement is in direct contradiction to evidence that he had given earlier and I reject it. In relation to the former, the Applicant clearly had other options which would have been apparent to him at the time, the most obvious being the $1,890 he had in his wallet. I find that he made a pragmatic and self-serving decision to transport a large quantity of drugs to avoid paying $2,000.

    [69] Transcript, page 80, line 20 to 22.

    [70] Transcript, page 81, line 30 to 34.

20. I note that the drugs were estimated to have a value of around $85,000 and I accept that the Applicant was not in a financial position to have purchased the drugs, even on credit, so I am satisfied that he was merely transporting them for others involved in the supply of drugs and he was not intending to sell them himself.

21. The Applicant gave evidence that at the time of his arrest he was still coming down from his methamphetamine addiction, having difficulty sleeping, and experiencing stress and anxiety which he thought was partly due to the stress of the prison environment and partly to his withdrawal from methamphetamine.[71]

    [71] Transcript, page 16, line 36 to 40.

22. The Applicant was incarcerated in central Queensland. His wife sold the family home in October 2018 as she could not keep up with the mortgage payments. She eventually moved with their son to Gladstone to be close to the Applicant.[72] Their daughter, stayed in Brisbane with friends to complete her final year of school.[73]

    [72] Transcript, page 17, line 8 to 14.

    [73] Exhibit G1, Section 501 G-documents, G8, page 95.

23. On 9 January 2019, the Applicant was convicted and sentenced in relation to all of the drug  offences.

24. The sentencing remarks included the following:[74]

    “[The offences] are in two sets, one concerning offences committed on the 4th of September 2017, and the second, on the 6th of March 2018. In what I will call the first set of offences, you have pleaded guilty to possession of  dangerous drugs, being MDMA, MDA and cannabis, and possession of methylamphetamine and cocaine, each in an amount exceeding two grams…The summary offences for that day include property suspected of having been used in connection with a drug offence; possession of property suspected of being the proceeds of a drug offence; unlawful possession of a category N weapon; possession of things used in connection with possessing a dangerous drug; property suspected of having been acquired for the purpose of committing a drug offence, and a further offence of possessing small amounts of cannabis and cocaine.

    You committed those offences when you were 37, and you were granted bail. You ignored the bail and its requirements, and committed the second set of offences on the 6th of March…Having been charged with possession of dangerous drugs, in amounts exceeding two grams, you nevertheless continued to offend by, six months later, being found in possession of in excess of 200 grams of methylamphetamine, 269, approximately; approximately 47 grams of cocaine; 1.9 grams of MDMA, cannabis and diazepam, and just over two kilos of gama-butyrolactone, or GHB. These drugs were contained in smaller containers, which are indicative of them being used for sale, and, indeed, commerciality is alleged and it is not contested with respect to both sets of offences.

    On the first occasion, you were found to have $2,200 in cash, described as being bundled neatly and held together with rubber bands, and on the second there was $1,890 in cash, in two separate bundles. I have no difficulty…reaching the view that these drugs were held for a commercial purpose. You have been in custody since the second set of offences, for a period of 309 days, which cannot be declared but which I will take into account. Other matters which I have taken into account include the fact that you have entered a timely plea. On the other hand, the average value of the drugs held by you on the second occasion was, I was told, in the order of $85,000.

    With respect to the first set of offences, you were, as I have said, a 37 year old man with no convictions. You had, at that stage, led an ordinary, commendable life; you had achieved trade qualifications as a plasterer and you were working as such; you were married; you had two children. You had always been in employment; you had worked, as I say, as a plasterer and a subcontractor. I was told by your counsel that, at about that time, you felt the effects of knee injuries, brought about from work, and, perhaps, from earlier sporting activities, which affected your capacity to work and required you to have knee surgery on more than one occasion. I was told that you went back to work too early and encountered substantial pain as a result of the injury and the surgery. You used methylamphetamine for pain management, and addiction quickly followed.

    The letter from your wife speaks of your knee reconstructions, and her belief that your use of methylamphetamine began as a way to block out the pain, the worry of an outstanding tax bill and a way to cope with the pressures of family life. The first set of offences are serious, involving amounts of 5 schedule 1 drugs in excess of two grams; the second set, even more serious, because the second set was convicted in the teeth of your realisation that you had been charged with, and you were facing conviction, for your earlier possession. But you continued and you engaged in possession of substantial, large amounts of drugs, and those large amounts of drugs must be reflected in the sentence I intend to impose.

    …I am going to impose a head sentence with respect to count 1…which is possession of methylamphetamine in excess of 200grams, it being, in my view, the most serious of the charges. And, in doing so, I take into the overall criminality of all your offending, both under the first and second set of offences, and with respect to the summary charges. Had you not served 309 days in custody already, a period which I will take to be 10 months, I would have sentenced you to a period of nine years imprisonment on that first count and the second set of offences. What I am going to do, though, is to reduce that to eight years and two months, to take into account the time you have spent in custody.”

    [74] Ibid, G13, pages 295 to 296.

25. For the more serious offences committed on 4 September 2017, the Applicant was punished as follows:

    ·possession of dangerous drugs (MDMA) - two and a half years imprisonment; and

    ·possession of dangerous drugs (cocaine) and possession of dangerous drugs (methamphetamine) - four years imprisonment;

26. For the more serious offences committed on 6 March 2018, the Applicant was punished as follows:

    ·possession of dangerous drugs (methamphetamine) - eight years and two months imprisonment;

    ·possession of dangerous drugs (cocaine) - four years imprisonment; and

    ·possession of dangerous drugs (MDMA, cannabis and diazepam) and possession of dangerous drugs (GHB) - two years imprisonment.

27. The Applicant’s total effective sentence was eight years and two months imprisonment with a non-parole period of two years. He will be eligible for parole on 9 January 2021. His sentence will expire on 8 March 2027. He has made an application for parole and Corrective Services has recommended to the Parole Board that parole be granted with certain conditions. 

28. After the Applicant introduced his wife to methamphetamine, she continued to use it. She described it giving her a false belief that she could not complete anything without the help of the drug and numbing negative feelings. She said it made her feel somewhat okay about losing the Applicant when he was arrested.[75] She hid her use from the Applicant because she was ashamed. In January 2019, she was caught in possession of methamphetamine, which was for her own use.[76] She has not used drugs since then.[77] She was sentenced to two years of probation with no conviction recorded.[78] She attended regular drug counselling sessions and at the beginning of 2020 she was still attending counselling monthly to help with depression and anxiety.[79] She will be on probation until September 2021.[80]

    [75] Transcript, page 106, lines 17 to 22.

    [76] Transcript, page 106, lines 23 to 25.

    [77] Transcript, page 107, line 4.

    [78] Exhibit G1, Section 501 G-documents, G8, page 89, paragraph 23.

    [79] Ibid, G8, page 90, paragraph 24.

    [80] Ibid, G8, page 69, paragraph 136.

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

29. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

1. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:

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

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

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

2. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:

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

   (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

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

   (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

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

   (f)The cumulative effect of repeated offending;

   (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

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

   (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

3. The Applicant has not committed any violent or sexual crimes. Nor has he offended against vulnerable persons or government representatives or officials in the performance of their duty. He admitted to supplying methamphetamine to his wife and encouraging her to use it. He has not been convicted of any offence arising from that, but it is serious conduct that he engaged in to the detriment of a person who had every expectation that he would protect her. I take this serious conduct into account.  

4. In relation to the breaches of bail, the Applicant said sometimes it just slipped his mind, possibly because he was still using drugs or he was trying to keep himself busy, but normally he would hand himself in the next day and explained that he had missed his sign in by 12 hours or so.[81] He could not recall how the contravention of a direction or requirement had come about.[82] One of the breaches of bail occurred after the Applicant had stopped using drugs and therefore shows a somewhat careless attitude to his legal obligations.

   [81] Transcript, page 13, line 36 to 44.

   [82] Transcript, page 13, line 46 to page 14, line 8.

5. The serious criminal offences were all dealt with in one sentencing episode and the various sentences of imprisonment imposed indicate serious offending. In particular, the sentences for the second set of offences reflect not only the large quantity of drugs but the fact that the Applicant committed those offences while on bail for the first set of offences. I consider it to be a further matter of aggravation that in his commission of the second set of offences the Applicant drove, and exceeded the speed limit. one day after having his license disqualified.

6. The Applicant’s offending was frequent in the sense that all of his offending occurred in a seven-month period. The most recent offence was certainly the most serious and it was committed in more serious circumstances, being that the Applicant was on bail with his license disqualified for unlicensed driving.      

7. There was not a cumulative effect of the Applicant repeated drug offending because on both occasions he was intercepted by police and the drugs and other items were seized before they could be delivered.  Had he succeeded in his part of the larger operation, which was his intention, he would have facilitated the distribution and supply of substantial quantities of dangerous drugs, including drugs of addiction and a “date-rape” drug (GHB), within the Australian community. Further, he would have facilitated the supply of weapons that can cause serious injury or death, being a double-bladed knife and a telescopic baton.    

8. I do not consider that there were any substantial mitigating circumstances with respect to either set of drug offences. The Applicant committed the first set primarily to maintain his supply of drugs and the second set to settle a relatively small debt that he could have repaid using other means.   

9. I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. Taking the relevant factors into account, the offending as a whole is very serious. 

   The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

10. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

    ·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    ·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

11. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

12. If the Applicant again attempts to transport quantities of drugs for drug dealers, and if he is successful, he will facilitate the supply of dangerous, addictive drugs within the community. The nature of harm from such drugs in the community includes addiction, poor health, property crimes or crimes of violence, and the neglect and abuse of children of addicts. The Applicant acknowledged that since he has been incarcerated he has developed an awareness of the harm drugs cause in the community, including the devastation it causes to small communities, families, and to youth.[83]  What is more, the circulation of illicit drugs in the community puts a significant burden on the health and criminal justice systems.

    [83] Transcript, page 80, line 30 to 35.

13. The circulation of illegal dangerous weapons within the community increases the risk of injury and death to individuals. 

14. The Applicant’s traffic infringements offences largely consist of relatively minor speeding infringements. However, even low level speeding can carry some increased risk of an accident. 

    Likelihood of engaging in further criminal or other serious conduct

15. Apart from failing to report at a police station a handful of times, the Applicant’s only criminal offending is the drug related offending committed in September 2017 and March 2018. The Applicant has expressed remorse for his offending, recognising the harm that the drugs he possessed could have done in the community had they not been intercepted. Despite claiming that he felt under duress to commit the second set of offences, he acknowledged that there was no reasonable excuse for it.[84] He expressed remorse and shame for having encouraged his wife to try methamphetamine. In addition, he regrets the consequences of his offending on him and his family. He said:

    “After being in jail I don’t think there’s anything that will make me want to come back here. This is nearly taken everything away from me, it’s taken a large amount of my life, it’s affected my family in a very bad way…. I want to prove that I can be that person I was before I was arrested, before I got addicted. I want to prove that I’m a person of good values, you know, hard-working husband and father”.[85]

    [84] Transcript, page 15, lines 32 to 35. 

    [85] Transcript, page 23, line 39 to 45.

16. The Applicant committed the September 2017 offences while he was using methamphetamine daily and for the purpose of support his addiction. It is widely accepted that methamphetamine use, and drug addiction impairs a person’s judgment. I accept the Applicant’s evidence that methamphetamine “has a way of making you make real questionable choices, changes your personality almost”.[86] The Applicant committed the March 2018 offences after being approached and threatened by his supplier. His offending is linked to his drug use and addiction. Accordingly, his risk of re-offending is dependent on his risk of resuming his drug use and connecting with persons who deal in drugs.

    [86] Transcript, page 12, lines 45 to 46.

17. The Applicant had no interest in methamphetamine until it was suggested as a means of relieving his pain so he could earn a living. He now shows insight into the effect the drug had on him and the measures he must take to avoid relapsing as shown in his relapse prevention plan.[87] He has demonstrated the ability to cease using methamphetamine, at least for a two month period, in the wider community. He has not used drugs of any kind in the two years and nine months that he has been incarcerated.[88]

    [87]  Exhibit G1, Section 501 G-documents, pages 111 to 123

    [88] Transcript, page 18, line 41.

18. According to the Applicant, drugs are freely available in the prison. If there is drug use around him, he removes himself from the situation as much as possible. As he is in a low security area, he has his own room so he can go there and write letters to his children or paint. He said there is a small group of people in the prison who are focused on training and bettering themselves, and he sticks with this core group of “really good people”.[89]

    [89] Transcript, page 18, lion 43 to page 19, line 25.

19. In prison, the Applicant exercises daily and focuses on healthy living. He works in highly trusted positions, for example he works unsupervised driving a tractor outside the prison. He has applied to receive counselling in prison however the numbers are too high and there is a waiting list.[90] He has completed a high intensity drug rehabilitation course,[91] which he found very useful and from which he developed his relapse prevention plan.[92] He has also completed multiple entry-level university courses.[93] Some of the work he does in prison is physically demanding and his knees are holding up very well which he thinks is due to the training he does in the gym as his body is now stronger.[94]

    [90] Transcript page 76, line 16 to 21.

    [91] Exhibit G1, Section 501 G-documents, G8, pages 11 to 116.

    [92] Transcript, page 19, line 32 to age 20, line 2.

    [93] Transcript, page 18, line 9 to 21.

    [94] Transcript, page 18, line 36 to 40.

20. When the Applicant entered custody, he had a high security classification. He was subsequently re-classified as low security and then relocated to the prison farm.[95] He has been at the prison farm for just over 12 months.[96] According to the Applicant, there is minimal supervision at the farm, however prisoners are regularly transferred back to high security for example if they fail a urine test.[97] The Applicant has only been drug tested once since being incarcerated, which occurred a few months ago.[98] He said there are random and targeted drug tests carried out, and he believes that the officers tend to target prisoners who exhibit signs of drug use.[99]

    [95] Exhibit G1, Section 501 G-documents, G8, pages 138 to 143.

    [96] Transcript, page 21, line 38 to 39.

    [97] Transcript, page 22, line 1 to 13.

    [98] Transcript, page 74, line 28 to 30.

    [99] Transcript, page 74, line 30 to 42.

21. For around a year, the Applicant has been helping to run Narcotics Anonymous meetings inside the prison. The meetings are for people who feel that they need help and want to better themselves or need someone to talk to about their drug use. The Applicant said he enjoys listening and trying to help people.[100]

    [100] Transcript, page 21, line 12 to 22.

22. The Applicant has been recommended for parole and he is awaiting the Parole Board’s decision.[101] He said he would actively engage in any conditions imposed in relation to parole and that conditions could only be a good thing that would help him stay “on a good path”. He is interested in counselling whether or not that is a condition that is imposed on his parole and to engage in urine testing and to have a curfew.[102] The Applicant has been speaking with his wife about finding him some local counselling to do if he is released.[103] He said he would be interested in joining a local Narcotics Anonymous group.[104] The Applicant’s wife is aware of the services that are available locally and she will help him in that regard. The Applicant acknowledged that after suffering an addiction he would have to be vigilant for a long time to ensure he does not relapse.[105]

    [101] Transcript, page 22, line 38 to 44; A2, pages 5 to 11.

    [102] Transcript, page 23, line 22 to 31.

    [103] Transcript, page 78, lines 1 to 5.

    [104] Transcript, page 78, line 16 to 20.

    [105] Transcript, page 24, line 5 to 6

23. If the Applicant is allowed to return to the Australian community, he plans to live with his wife and son in Gladstone and to find work.[106] He said methamphetamine use is rife in the construction industry and that he had not realised that until he became addicted - when he was using methamphetamine it was easy to spot people who were also using it.[107] When asked how he would avoid methamphetamine if he returned to the building industry, he said he would be more selective about who he worked with. He said drugs are more prevalent on large, union sites and he would prefer to work with smaller commercial builders.[108]

    [106] Transcript, page 22, line 15 to 28; page 72, line 33 to 39.

    [107] Transcript, page 31, line 24 to 27.

    [108] Transcript, page 78, line 44 to page 79, line 4.

24. The Applicant has a very good relationship with the owners of a plastering company, Mr Wilson and Mr Allen. They are against drugs, but they visited the applicant in prison, and they wish to support him.[109] He had done work for them over the years.[110] The business performs work from Coffs Harbour to Cairns. Mr Wilson said he is willing to offer the Applicant work that he is physically able to do. He cannot guarantee an offer of work due to the pandemic but he would like to help the Applicant.[111] The Applicant has also made some connections with plumbers and electricians who work at the prison and who consider that he has a good work ethic. They have told him they would recommend him for work in Rockhampton.[112]

    [109] Exhibit G1, Section 501 G-documents, G8, page 69, paragraph 138

    [110] Transcript, page 7, line 5 to 10.

    [111] Transcript, page 59 to 60.

    [112] Transcript, page 22, line 15 to 28; page 72, line 33 to 39.

25. The matter that gives me the greatest cause for concern in relation to the risk of re-offending is that the Applicant committed the second set of offences when he had not been using drugs for two months and therefore did not have drugs in his system. My concern is that this might indicate that the Applicant would be prepared to engage in such behaviour even when not affected by drugs. Professor James Freeman, forensic psychologist, interviewed the Applicant late last year and he provided a report and risk assessment. He gave evidence in the hearing. I explained my concern to him and sought his expert opinion. 

26. Professor Freeman opined that the Applicant’s commission of the second set of offences was reflective of a man who was in a desperate state when exposed to foreign threats who chose the shortest and quickest solution to the problem.[113] He emphasised the power of specific deterrence, noting that the Applicant has experienced incarceration and that the threat of further incarceration and visa cancellation are both deterrents.[114] He said in his line of work there are two groups of people: those whose for whom gaol is a revolving door, and the second group who are pro-social and will do anything to avoid returning to gaol.[115] He said that the Applicant is clearly motivated to maintain abstinence from drugs because he has a lot to lose.[116] He thought the Applicant was well placed to avoid drugs because of protective factors such as a home to go to and a partner who will not tolerate drug use.[117] He thought the Applicant’s partner, having battled addiction herself, was acutely aware of high risk situations and is ideally placed to keep a very close eye on the Applicant and make sure he avoids such situations.[118] Professor Freeman identified three factors that indicate the highest likelihood of relapse. They are: intravenous use, motivation to change and protective factors.[119] The Applicant did not ingest methamphetamine intravenously, he has demonstrated motivation to change and he has protective factors.

    [113] Transcript, page 89, line 43 to 47.

    [114] Transcript, page 90, lines 3 to 37.

    [115] Transcript, page 90, line 41 to 44.

    [116] Transcript, page 92, line 10 to 14.

    [117] Transcript, page 92, line 20 to 26.

    [118] Transcript, page 92, line 35 to 46.

    [119] Transcript, page 94, line 7 to 14.

27. As stated above, Professor Freeman interviewed the Applicant in late 2019. His essential findings are summarised in the following paragraphs:

    “The origins of the uncharacteristic offences can be directly attributed to his methamphetamine dependency and association with a peer support group that condoned or promoted such drug use. More specifically, he was exposed to methamphetamines and it is noteworthy that exposure (and affiliations) with deviant subgroups can significantly enhance drug dependencies. In fact, it is one of the most reliable predictors of an individual’s substance use. Additionally, methamphetamine usage promotes maladaptive decision-making and response inhibition and elevated risk-taking propensities. As a result, he engaged in a period of non-consequential thinking, particularly when attempting to stabilise his life.

    The risk of recidivism can be considered in the low risk category. This is based on:

    ·The PCL-R [Hare Psychopathy Checklist – Revised] that did not reveal underlying psychopathy the or criminal versatility;

    ·No evidence of personality pathologies; and

    ·No evidence of underlying deviant or criminal versatility.

    Rather, there are a number of protective factors upon release, including: (a) clear and achievable goals, (b) work opportunities, (c) a commitment to maintain parental responsibilities, (d) stable accommodation, (e) stable emotional support (e.g. wife), (f) supervision via a parole order, (g) a commitment to engage in on-going counselling to avoid relapse, etc. in regards to the latter, and encouragingly, a recent systematic review of the literature has indicated that on-going engagement in psychological treatments can reduce the risk of methamphetamine usage. Additionally, the applicant reported that his first period of incarceration (and subsequent removal from his son) created a strong specific deterrent effect against recidivism. This is consistent with research that indicates the application of sanctions can reduce recidivism among certain individuals, and [the Applicant] presents as an individual with such typology e.g., he essentially has pro-social ideation. However, he will need to be vigilant of relapse for an extended period of time as methamphetamine dependency is usually chronic and requires lasting after-care e.g., treatment, support and monitoring.”[120]

    [120] Exhibit G1, Section 501 G-documents, G8, pages 82 to 83.

1. Professor Freeman’s risk assessment appeared to be based on reasonably accurate information and I have no reason not to accept it.

2. After being introduced to methamphetamine, the Applicant’s wife used it from time to time after the Applicant’s arrest and her use gradually got worse. She sold things and downsized so she could afford to buy it. She does not know if she was buying drugs from the same people who supplied the Applicant.[121] It is very much to her credit that she did not commit offences to fund her use and she has not used drugs since her arrest in January 2019.

   [121] Transcript, pages 118 to 119.

3. The Applicant’s wife is studying full-time and receiving Centrelink payments.[122] Their daughter has finished high school and their son attends a State school, they do not have a mortgage or car loans, the electricity bill is less than it used to be and there was some money left over after selling the home that has been put aside.[123] The upshot is that the family is no longer experiencing financial stress.

   [122] Transcript, page 73, lines 5 to 9.

   [123] Transcript, page 73, lines 2 to 7; page 108, lines 7 to 26.

4. If the Applicant were to relapse, the Applicant’s wife would not allow him to remain in the family home, but she would help him to overcome the relapse.[124] She said:

   “I have told [the Applicant] in recent months or so that it’s not something that I’m going to tolerate. I can’t live through any of this again. Mentally it has been very hard on me and it’s just yes, not something that I want to go through again.”[125]

   [124] Transcript, page 109.

   [125] Transcript, page 106, line 125.

5. When giving evidence, the Applicant’s wife showed impressive knowledge of the physiological effects of methamphetamine and why it is addictive.[126] Throughout her evidence she was able to identify the changes in the Applicant’s behaviour that she later learned were associated with methamphetamine use. She feels confident now that she would know if he were to relapse. She said with her experience over the last two years, “I can pass someone in the street now and it’s apparent to me [that they are using drugs]”.[127]

   [126] Transcript page 104, line 25 to 35.

   [127] Transcript, page 108, lines 36 to 48.

6. I consider the Applicant’s wife to be a protective factor. In addition, Gladstone is far away from the Applicant’s drug using associates. The Applicant is better able to do physical work now and he has some employment prospects in the region where he and his wife intend to live.

7. I consider there to be a low risk that the Applicant will commit further offences of the kind that he has committed.     

8. I note that the Applicant committed some less serious traffic infringements when not affected by drugs. I am satisfied that his interaction with the criminal justice system been a sobering experience and there is only a low risk that he would drive without regard for road rules in future. 

   Conclusion: Primary Consideration A

9. Primary Consideration A weighs moderately against revocation of the cancellation of the Applicant’s visa.

   Conclusion: Primary Consideration A

10. Primary Consideration A weighs moderately against revocation of the cancellation of the Applicant’s visa.

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

11. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.

12. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;

    ·     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;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;

    ·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

    ·     whether there are other persons who already fulfil a parental role in relation to the child; and

    ·     any known views of the child.

13. The Applicant and his wife have a 13 year old son (“Child A”) who is in grade 7 at school and an 18 year old daughter (“Ms B”) who has been accepted into university. Child A lives with the Applicant’s wife.

14. The Applicant’s wife said she always thought the Applicant was the better parent, perhaps the fun parent while she did the boring household chores and cooking, because he would take the children to parks, swimming pools, movies, and play wrestle with both of them when they were younger, and he always seems to know the right presents  to buy them for birthdays and Christmas while she struggled with ideas.[128] She said before the Applicant started using methamphetamine she and the children were his first priority.[129]

    [128] Exhibit G1, Section 501 G-documents, G8, page 88.

    [129] Transcripts, page 103, line 30 to 33.

15. The Applicant describes his relationship with Child A as extremely good. He said they regularly went swimming at the local swimming club, and that while his daughter was at soccer training he would go with Child A to the pool and swim, then pick up his daughter when she was finished. He said he and his son played lots of games together because he was into gaming.[130] He recalled playing games on the PlayStation, spending time with Child A on weekends at an activity park and riding his bike while  Child A rode his scooter.[131] The Applicant took both his children to karate for a couple of years because he thought it was a good way to teach discipline and respect for authority, and a way to interact with other families.[132]

    [130] Transcript, page 6, line 20 to 28.

    [131] Exhibit G1, Section 501 G-documents, G8, page 60.

    [132] Transcript, page 6, line 30 to 41; page 15, line 32 to 35

16. While incarcerated the Applicant has maintained contact with his children through phone calls, virtual calls and letters.[133] The Applicant mentioned that one of the things he does to remove himself from drugs in prison is go to his room and write letters to his children.

    [133] Transcript, page 17, line 15 to 20.

17. Child A provided a letter of support for the Applicant.[134] In it he states that he has barely seen the Applicant since his arrest. He says the Applicant used to take him to various activities including karate lessons, bike riding, swimming and the movies and that if the Applicant were home, he could see him every day and do some of these things with him again. While the Applicant has been in prison, they draw pictures and send them to each other, and he likes receiving these pictures from the Applicant. He describes the Applicant as a “great dad” and says that if the Applicant was deported it “would destroy me and my mum’s life”.

    [134] Exhibit G1, Section 501 G-documents, G8, page 98.

18. I accept that before his drug addiction, the Applicant was a loving, engaged, responsible parent and that he had a positive relationship with Child A. I accept that Child A believes his life will be a lot worse if the Applicant is deported.

19. According to the Applicant, his imprisonment has adversely affected Child A in a number of ways, including having to move home multiple times after his wife could not pay the mortgage on their family home. He said every time they have moved, Child A has lost local friends and school friends.

20. The Applicant’s wife shared the Applicant’s view. She said Child A has become disconnected from the Applicant despite the Applicant’s efforts to maintain regular contact. He has moved schools three times in the last two years, he has struggled to make friends and he (Child A) thinks he is suffering from social anxiety. She said he does not like showing his emotions. Both she and Ms B describe Child A as being withdrawn. She said Child A has not always been withdrawn and it does not help that he is experiencing puberty with a deep voice, pimples and almost needing to shave while the other boys are not. [135] On that point, she thinks the Applicant’s imprisonment has adversely affected Child A because he is experiencing puberty without a father to guide him through those bodily changes.

    [135] Transcript, pages 110 to 111.

21. She described a deterioration in Child A’s mental wellbeing since the Applicant’s incarceration. She said before the Applicant was arrested, Child A was always excited about school and completed his homework each week, but his enthusiasm diminished over time and it was a struggle to get him to do homework. Child A has retreated further into his shell and he struggles to talk about his feelings. He has immersed himself in gaming which she thinks is a coping mechanism.[136]

    [136] Exhibit G1, Section 501 G-documents, G8, page 91, paragraph 31.

22. The Applicant’s wife took Child A to see a counsellor because the Applicant was not there to help him emotionally. I have before me a letter from Gladstone’s Women’s Health Centre, dated 28 February 2020,[137] which states that on five occasions Child A attended counselling for support in dealing with the Applicant’s incarceration and the grief associated with that. The letter says that Child A has a good relationship with his mother and misses his father. It further says that, as with any child, especially one in a transitional period in their life, Child A would benefit from ongoing contact with his father and with having a good support system in place. It says if the Applicant were to be deported, there is a significant chance that Child A would be impacted by a higher level of grief and abandonment leading to more complicated issues and behaviour. The Applicant’s wife said the sessions did not help and Child A refused to attend more.

    [137] Ibid, G8, page 99.

23. According to the Applicant’s wife, there not any male role models in Gladstone for Child A. She does not make friends either and she is disconnected from her family because of their disapproval of the Applicant’s offending. She does not have any male family members or friends who could help Child A.[138]

    [138] Transcript, pages 110 to 111.

24. The Applicant thinks Child A relies on him a lot as he needs a strong father figure coming into his teenage years. He is afraid that if he is removed from Australia, Child A will not have any other person to fulfil that role in his life. The Applicant’s wife is worried that if the Applicant is deported and she and Child A do not go with him, Child A, will not have a meaningful relationship with the Applicant.[139] On that point, she pointed out that since March 2019, she and the children have not been permitted to have contact visits with the Applicant because of Queensland prison rules. She found that it was nearly impossible to maintain a family relationship, talking through a thick pane of glass and be limited to 10-minute phone calls. She said there is no way of feeling truly connected with someone when you are not able to hug and even just hold hands for a short time.[140]

    [139] Transcript, pages 113 to 114.

    [140] Exhibit G1, Section 501 G-documents, G8, page 92, paragraphs 38 to 41.

25. Ms B also thinks Child A would suffer greatly without a male figure in his life. She said he will be faced with the prospect of moving to a new country or having to live without his father during the years he needs a father the most. She said having a father in gaol is a struggle and that “You don’t realise what toll it is till you have to experience it. I would never hope anyone feels that pain and confusion I have in the past 3-4 years and I hope my brother doesn’t have to either.”[141]

    [141] Ibid, G8, pages 94 to 96.

26. I accept that Child A is going through delicate and important stage of his development and that he does not have peers or friends sharing that experience. He is isolated and lonely. He lacks a present father figure or male role model and can only connect with the Applicant though letters and phone calls which is inferior to having his father physically and consistently present. Despite a positive relationship with his mother, and some counselling sessions, he is withdrawn and considers that he suffers from social anxiety. This goes beyond a child missing a parent. I am satisfied that developmentally and psychologically, Child A needs a positive father figure present in his life, and the Applicant is the only person who can realistically fill that role. The Applicant’s physical absence from Child A’s life will have a significant detrimental impact on him despite the fact that he has a loving, responsible mother fulfilling a parental role and is able to maintain contact with the Applicant in the way he has been doing so far.       

27. There is some uncertainty about whether, should the Applicant be deported, his wife and Child A would join him overseas. First, the Applicant’s wife’s probation continues until September 2021 and she said she is not permitted to leave Queensland or Australia until that time.[142]. I am prepared to accept that. A more long-term concern is whether she would be allowed to move to Ireland given her drug conviction. This would force the children to choose between their parents. This is a speculative concern given that they have not sought the advice of a migration lawyer and the Applicant’s wife has not applied for any visa in Ireland. Ms B’s evidence is to the effect that she would remain in Australia given her ties here such as her university studies. This means that if the Applicant’s wife and Child A went to join the Applicant, Ms B would be left here by herself, and I will address the impact of that on Ms B under Other Considerations. It would also clearly adversely impact Child A to be without his sister reasonably near him and in the same time-zone.     

    [142] Exhibit G1, Section 501 G-documents, G8, page 91, paragraph 32

28. The Applicant’s wife thinks that if Child A has to move to Ireland it would have a “massive” negative effect on him as he does not know his relatives there well, he does not like cold weather, and he does not cope well with change.[143] I would add that, Child A would obviously have to leave the country he grew up in and the only country he has ever known. While the language and culture may not be very different to Australia, it will still be an unfamiliar place where he will stand out because of his accent. The Applicant’s wife has pointed to some negative impact on her that she foresees if she follows the Applicant to Ireland including her sense that she would be abandoning her daughter. I am not satisfied that she would definitely move to Ireland even if she could. There was no suggestion from any witness that Child A, whose only constant parental relationship has been with his mother, would move by himself to Ireland to be with his father. Therefore, I find that there is a reasonable prospect that, if the Applicant is deported, Child A will not follow him. Each of the realistic options for Child A involve a significant negative impact on him.

    Conclusion: Primary Consideration B

    [143] Ibid, G8, page 91, paragraph 35

29. The best interests of the Applicant’s weighs heavily in favour of the revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

30. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

31. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[144]

    [144] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

32. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

33. Paragraph 6.2(1) of the Direction states that:

    “The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

34. Those principles, set out in paragraph 6.3 of the Direction, are:

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

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

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

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

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

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

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

    Analysis – Allocation of Weight to this Primary Consideration C

1. Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

2. Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

   ·the Applicant moved to Australia when he was 21 years old. He is now 40 years old;

   ·the Applicant committed his first traffic infringement in 2012, which was 11 years after he moved to Australia, although I do not find his traffic history up to 2016 to be particularly serious. He committed his first criminal offence (in 2017) sixteen years after moving to Australia;

   ·the Applicant’s drug related offending was very serious;

   ·apart from a seven month period when the Applicant was addicted to methamphetamine and withdrawing from methamphetamine, he has been a law-abiding member of the community, working to support his family and instilling good values in his children. By his actions over a 16 year period, he has demonstrated that his preferred lifestyle is one in which he is a law-abiding, contributing member of the Australian community. He has continued to demonstrate that while in gaol by abstaining from drugs, maintaining employment, choosing to associate with other inmates who are pro-social, undertaking rehabilitation and vocational courses, and helping to organise Narcotics Anonymous meetings;  

   ·there is a low risk that he will commit further criminal offences; 

   ·he has made efforts to secure gainful employment if he is permitted to return to the Australian community; 

   ·apart from when he has been incapacitated or incarcerated, he has held gainful employment and not relied on Government support. He always paid tax until two years before his arrest when he was experiencing financial problems[145]; and

   ·if he is removed to Ireland, it will break up his family which will result in either his daughter being abandoned by her immediate family (see Other Considerations) and his son being without his older sister, or the Applicant’s son being without his father at a crucial time emotionally and psychologically. Either of these options will adversely affect the Applicant’s wife because of the adverse impact it will have on one of her children.  

   [145] Transcript, page 7, line 31 to 37; G8, pages 211 to 232.

   Conclusion: Primary Consideration C

3. The Applicant breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. However, given the countervailing factors, I am unable to find that the expectations of the Australian community favours cancellation of the Applicant’s visa. Primary Consideration C is neutral. 

   OTHER CONSIDERATIONS

4. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

   (a) International non-refoulement obligations

5. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.  

   (b) Strength, nature and duration of ties

6. The Applicant came to Australia at the age of 21 and has lived in Australia for around 19 years. His criminal offending occurred over a seven-month period 16 years after moving to Australia. He has a solid employment history. He is entitled to substantial weight under paragraph 14.2(1)(a)(ii) of the Direction.

7. The Applicant’s daughter, Ms B, is 18 years old and in her first year of university, although she deferred this year because of the pandemic. She works part-time and shares a flat with a friend.

8. The Applicant described his relationship with Ms B as a good one and said they are extremely close. He said that when she was growing up they played a lot of sport and did activities together, that he was involved in her soccer club and that she would come to him with her problems.[146] He was a strict parent but thought Ms B respected that and knew he was there to protect her.

   [146] Transcript, page 6, line 10 to 18.

9. Ms B struggles with the fact that the Applicant is in prison. She was hurt when the Applicant’s wife made him leave the family home, and she rebelled against her mother following that. The Applicant said his wife struggled to have a connection with Ms B, whereas he and Ms B have always had a strong emotional bond and she was comfortable confiding in him.[147]

   [147] Exhibit G1, Section 501 G-documents, G8, G8, page 59.

10. Ms B described her relationship with the Applicant as still very close despite the distance and his imprisonment. She said he has always been a massive support in her life, pushing her to do her best and guiding her in the right direction. When the Applicant became a drug addict, among other changes in his behaviour, he started missing her soccer training in soccer games. Previously, he had been more excited than her about the games and it hurt her a lot when he started missing them.

11. She described the Applicant’s incarceration as having had a big impact on her mental health. The strain placed upon her family and her not living at home was a lot to cope with a young age and she is still reliant on medication. The Applicant said he worries about Ms B’s mental state because she has a history of depression and anxiety.[148] Ms B has been engaging in counselling for anxiety and depression for two years and she was put on medication for if a year ago.[149]

    [148] Ibid, G8, page 70.

    [149] Transcript, page 113, lines 16 to 20.

12. If the Applicant is deported, Ms B will remain in Australia. She forecasts that her father’s absence will be difficult, and she will miss out on him being present when she graduates university, turns 21, gets married and has children. She will miss out on simple things like having dinner together or the Applicant doing little odd jobs around her home.[150]

    [150] Exhibit G1, Section 501 G-documents, G8, G8, page 91, paragraphs 33 and 34

13. Ms B may no longer be a minor, and she appears to have achieved a level of independence, however I am satisfied that the Applicant’s deportation would have a significant negative impact on her for the reasons she put forward.

14. What is more, the Applicant’s deportation could also result in her losing her mother and brother as there is a realistic chance that they would follow the Applicant to Ireland. Ms B cut ties with her maternal grandparents because of their disapproval of the Applicant. She occasionally sees her maternal aunt. Apart from that, she has no family support in Brisbane.[151] I am satisfied that if her immediate family were to move to the other side of the world in these circumstances it would be devastating for her.  

    [151] Transcript, page 113, lines 4 to 11.

15. The Applicant’s wife has been experiencing emotional hardship while he has been incarcerated, as she has been alone for a long time, raising their son by herself.[152]

    [152] Transcript, page 17, line 45 to page 18, line 4

16. She thinks that most of her mental health issues are due to the fact that she is not able to touch and spend quality face-to-face time with the Applicant on a regular basis. In early 2020, she said the only thing that kept her and the Applicant going was the thought that in 12 months they would be together again. She does not think their marriage could withstand permanent separation; the three years they have already been separated has taken a large toll on her mental health. She does not think that marriage is something that can be continued without a physical presence.[153]

    [153] Exhibit G1, Section 501 G-documents, G8, page 92, paragraphs 38 to 41.

17. If the Applicant’s wife were to follow the Applicant to Ireland, she would feel that she had abandoned Ms B and not been a good mother. She would not be able to help in an emergency as she would be so far away.[154] Not only that, moving to Ireland would mean all the hard work she has done to start afresh in Gladstone, including her studies, would be lost.

    [154]Transcript, page 112, lines 35 to 46.

18. The Applicant does not claim that non-revocation would have any significant impact on any other family members in Australia.  

19. The Applicant’s familial ties, and the impact on his family of his removal from Australia, weigh significantly in his favour under paragraph 14.2(1)(b) of the Direction. I am mindful not to take the same matter – the breaking up of the Applicant’s family – into account twice. In my final assessment of all of the Primary and Other considerations, I will take into account that either the Applicant’s son will be without his father or the Applicant’s daughter will be without her immediate family but that it is not the case that both of those outcomes would occur. 

20. Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs significantly in favour of revocation. 

    (c) Impact on Australian business interests

21. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.

    (d) Impact on victims

22. This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There are no individual victims of the Applicant’s offending. This Other Consideration (d), is therefore neutral.

    (e) Extent of impediments if removed

23. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

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

    (c)any social, medical and/or economic support available to that non-citizen in that country.

24. The Applicant is a 40-year-old man who is able bodied except for chronic problems with his knees that he is managing well with regular exercise. He does not claim to have any mental health issues. Ireland is reasonably similar to Australia culturally and linguistically. The Applicant did not contend that he would be without adequate medical or other services in Ireland.

25. The Applicant has a mother and 17 year old sister in Ireland.[155] He would be glad to have their help although he would not be able to live with them long-term.[156] He is on good terms with his father and stepmother,[157] who live in Dublin.[158] They have three children who are the Applicant’s half siblings who are in their twenties.[159] He has a brother and sister who live in the United Kingdom.[160] He thinks that if he does not get his visa back, he could return to Ireland or England however he said he has family support in Ireland. He does not see such a move as a negative as it is a fresh start for him either way.[161]

    [155] Transcript, page 3, line 40 to 43.

    [156] Exhibit G1, Section 501 G-documents, G8, page 70, paragraph 151.

    [157] Transcript, page 25, line 43 to 48.

    [158] Transcript, page 26, line 4.

    [159] Transcript, page 26

    [160] Transcript, page 4, line 5 to 6.

    [161] Transcript, page 76, line 26 to 31.

26. He imagines he would find it difficult to get work immediately as he does not have any contacts and he would probably be on welfare for a period of time or dependent on his family’s support, which he has never had to do before.[162]

    [162] Exhibit G1, Section 501 G-documents, G8, page 70, paragraph 105.

27. I am not satisfied that there are any significant barriers to the Applicant successfully re-establishing himself in Ireland. 

28. This Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.

    Findings: Other Considerations

29. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)international non-refoulement obligations: not relevant;

    (b)strength nature and duration of ties: weighs heavily in favour of revocation;

    (c)impact on Australian business interests: not relevant;

    (d)impact on victims: neutral; and

    (e)extent of impediments if removed: weighs slightly in favour of revocation.

    CONCLUSION

30. I am now required to weigh all of the Considerations in accordance with the Direction.  

    In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

    ·Primary Consideration A weighs moderately in favour of non-revocation;

    ·Primary Consideration C is neutral;

    ·I have allocated Primary Consideration B and Other Consideration (b) heavy weight in favour of revocation on the strength of the same matter, being that one way or another the Applicant’s family will break up and either of the two ways in which that will occur is sufficiently serious to outweigh Primary Consideration A.  

31. Accordingly, I am satisfied that there is another reason to revoke the cancellation of the Applicant’s visa.

    DECISION

32. The Decision under Review is set aside and substituted so that the discretion in s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s visa be exercised.

I certify that the preceding 156 (one hundred and fifty-six) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

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

Associate

Dated: 24 December 2020

Date of hearing:

7 and 8 December 2020

Solicitor for the Applicant:

Ms Caitlin White

Fisher Dore Lawyers

Solicitor for the Respondent

Mr David McLaren

Minter Ellison

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G21 pages 1 to 347)	R	-	20 OCT 2020
A1	Applicant’s Statement of Facts, Issues and Contentions	A	-	10 NOV 2020
A2	Applicant’s Further Evidence including:   ·     Statutory Declaration of the Applicant’s wife dated 11 November 2020 ·     Parole Board Assessment Report dated 14 August 2020 ·     Police Clearance issued by New Scotland Yard (UK) 16 November 2004	A	-	26 NOV 2020
R1	Respondent’s Statement of Facts, Issues and Contentions	R	24 NOV 2020
R2	Respondent’s Supplementary Documents (1 to 11 pages 1 – 117)	R	24 NOV 2020

ANNEXURE A – EXHIBIT LIST