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

Moli and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 666 (3 April 2023)
Division:GENERAL DIVISION
File Number: 2023/0137
Re:Foster Moli
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member S Burford
Date:3 April 2023
Place:Perth

The decision of the delegate of the Respondent dated 6 January 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with a decision that the cancellation of the Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
................[Sgd]........................................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister to refuse not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 38 year old man who arrived in Australia as a 24 year old – extent of impediments if returned to New Zealand – Non-Revocation Decision is set aside and substituted with a decision that the cancellation of the Visa be revoked
LEGISLATION
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Act 1958 (Cth) ss 15, 46(1)(d), 189, 196, 197C, 499, 499(1), 499(2A), 500(1)(b), 500(6B), 500(6H), 500(6J), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501E(2), 501F, 501F(4), 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
JNMKv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266
SCJD and Minister for Home Affairs [2018] AATA 4020
Webb v Minister for Home Affairs [2020] FCA 831
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(3), 5.2(4), 6, 7, 7(2), 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Senior Member S Burford
3 April 2023
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 6 January 2023 not to revoke the cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 38-year-old citizen of New Zealand. He first arrived in Australia on 3 February 2010 when he was 24 years old.[1] He has returned to New Zealand several times[2] and was granted the visa on 3 April 2016 following his last return visit to New Zealand.[3]
[1] R1, G13, page 84-85.
[2] R1, G13, page 84-85.
[3] R1, G15, page 92; R1, G13, page 84.
On 4 June 2021, the Applicant was convicted in the District Court of Western Australia of ‘Possessed a trafficable quantity of methylamphetamine with intent to sell or supply it to another’.[4] He was sentenced to a concurrent term of three years imprisonment.[5] The Applicant is currently at Yongah Hill Immigration Detention Centre.
[4] R1, G6, page 30.
[5] R1, G6, page 30.
Consequently, on 20 July 2021, the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[6] The Applicant requested revocation of the Cancellation Decision on 16 August 2021.[7] He submitted a personal circumstances form and evidence in support of his request for revocation.[8]
[6] Migration Act ss 501(6)(a) and 501(7)(c); R1, G15, pages 92-99.
[7] R1, G12.
[8] R1, G12.
By letter dated 5 October 2021, the Minister invited the Applicant to respond to adverse information regarding his Australian and New Zealand criminal history checks and incoming passenger cards.[9] On 26 October 2021, the Applicant responded to the invitation.
[9] R1, G16, pages 100-102.
On 6 January 2023, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[10] This is the reviewable decision before the Tribunal.
[10] R1, G3.
The Applicant was notified of the decision by hand at Yongah Hill Immigration Detention Centre on 9 January 2023.[11]
[11] Exhibit R3.
The Applicant lodged his application for review of the Non-Revocation Decision on 10 January 2023.[12] The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.
[12] R1, G2.
The Tribunal must hand down a decision on or before 3 April 2023.[13]
[13] Migration Act s 500(6L)
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be set aside and substituted.
THE HEARING AND THE EVIDENCE
The hearing was initially scheduled for 22 March 2023 at the Tribunal Registry in Perth. On the morning of Sunday, 19 March 2023 the Applicant emailed an additional witness statement to the Tribunal. The Tribunal formed the view that this information could not be taken into account by the Tribunal if the hearing proceeded at the scheduled time.
Following a directions hearing with the parties, the Tribunal decided to vacate the scheduled hearing date and relist the matter for 23 March 2023. While the Minister formally objected to the hearing being rescheduled on this basis, the Minister indicated they were able to attend a hearing on that date. The Applicant accepted he had been warned about the operation of ss 500(6H) and 500(6J) by the Tribunal on several occasions, but said he had difficulty organising witness statements from detention and he had only just received the statement which had been provided outside the timeframe provided for in ss 500(6H) and 500(6J), and provided for in the directions previously issued by the Tribunal.
As a rescheduled hearing could be accommodated by the Tribunal without significantly reducing the time for a decision to be made and without significant prejudice to the interests of the Minister, the Tribunal determined the matter should be relisted to ensure all the information submitted by the Applicant could be taken into account. The Minister did not raise any further objection to this proposed approach.
The rescheduled hearing was held on 23 March 2023 at the Tribunal Registry in Perth. The Applicant appeared in person and was self-represented. The Respondent was represented by Mr Anthony Gardner of Minter Ellison who also appeared in person.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.
The Tribunal also took evidence from the Applicant’s de facto partner, Ms Felicity Reid, who was also cross-examined. Ms Reid appeared by telephone.
The following documents were marked as exhibits:
·Statutory Declaration of Foster Moli, dated 23 February 2023 (Exhibit A1);
·Statement of Felicity Reid (Exhibit A2);
·Character reference letter of Felagai Steven Paul Mataipule, dated 16 March 2023 (Exhibit A3);
·Letter of support for Foster Moli by Pama Petia, dated 16 March 2023 (Exhibit A4);
·Certificate of course completion for Drug and Alcohol Abuse 101, dated 14 March 2023 (Exhibit A5);
·Attendance and participation form for SMART Recovery Australia (Exhibit A6);
·Unsigned letter of Christopher Reid (Exhibit A7);
·Section 501G documents, labelled G1 to G17, consisting of pages 1 to 125 (Exhibit R1);
·Respondent’s supplementary documents, labelled S1-S31, consisting of pages 1-135 (Exhibit R2); and
·Signed receipt of the notice of decision not to revoke visa cancellation under s 501CA(4) of the Migration Act 1958, dated 9 January 2023 (Exhibit R3).
The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 22 February 2023 prior to the hearing. The Applicant did not file a Statement of Facts, Issues and Contentions but did file the statement dated 23 February 2023.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[14] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[15]
[14] Migration Act s 501CA(3).
[15] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[16] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[16] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 23 January 2023, the Minister made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021).[17]
[17] Direction No 99 paras 2-3.
The Tribunal notes that the previous Direction No 90 was in force at the time the Non-Revocation Decision was made. At a directions hearing on 3 February 2023, the Tribunal alerted the parties to the fact that a new direction had been issued and that it would be required to apply Direction No 99 in conducting its review. A copy of Direction No 99 was provided to the parties by the Tribunal on 3 February 2023.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[18] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[19]
[18] Direction No 99 para 5.1(4).
[19] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [20](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[20] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[21]
[21] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[22]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[22] Direction No 99 para 8.

The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[23]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed;
(c)       impact on victims; and
(d)       impact on Australian business interests.
[23] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[24] Migration Act s 501(7)(c).
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[24]
The Tribunal finds that on 4 June 2021, the Applicant was convicted of the offence of ‘Possessed a trafficable quantity of methylamphetamine with intent to sell or supply it to another’ in the District Court of Western Australia for which he was sentenced to a term of three years imprisonment.[25]
[25] R1, G6.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[26]
[26] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
The Applicant submitted, in summary that:
·He accepts that his offending was serious and regrets his actions and the impact they have had on his family and the community;[27]
·His offending was primarily caused by depression which had been poorly treated prior to his offending and his associated drug use. He has undertaken treatment in the form of counselling while on bail and would continue this in the community if needed. He believes he is no longer suffering from depression and it will not be an issue for him in the future as he can manage his stressors through lifestyle changes including exercise and work;[28]
·He is no longer taking drugs and has been clean since before he entered prison, including a period of 14 months home detention prior before he was sentenced when he was subject to routine urinalysis testing.[29] He has undertaken voluntary courses to address addiction and substance abuse which he would continue in the community if needed;
·He is rehabilitated, has an offer of employment and the support of his partner and family and would not reoffend;[30]
·His ties to Australia through his partner, children and extended family are strong and they will be seriously impacted if he is returned to New Zealand;[31]
·He has a close relationship with his daughters and has maintained daily contact while in prison and detention. His children’s best interests are that he remains in Australia;[32] and
·His family in New Zealand cannot support him as his parents are old and there is no room in his parents’ house for him to live there. He is not sure about the employment situation in New Zeland and is uncertain if he will find work.[33]
[27] A1; Transcript, pages 9 and 39.
[28] A1; Transcript, page 11.
[29] Transcript, page 18; R2, S24, page 99 and R1, G8, page 36.
[30] A1.
[31] A1.
[32] A2.
[33] Transcript, pages 25-26.
The Minister submitted, in summary, that:
·The Applicant’s offending must be treated as very serious having regard to his history of offending in Australia and New Zealand including ‘repetitive and escalating’ offending in Australia, a failure to disclose offences to the Department of Home Affairs (the Department) on a number of occasions and a lack of insight or genuine remorse demonstrated by the Applicant;[34]
·The Applicant had unmet criminogenic treatment needs including with respect to substance misuse and mental health issues. He presented a risk of reoffending that ’cannot be maintained as low’;[35]
·Any attempts at rehabilitation are untested in the community and the protective factors available to the Applicant in the community including his family, home and employment are not substantially different to those existing at the time of the offending;[36]
·The Applicant has been employed consistently in Australia, but limited evidence has been provided of the Applicant’s ties to the community including to his children. He did not spend his formative years in Australia and commenced offending 18 months after arriving in Australia. Minimal weight should be given to his ties;[37]
·The Applicant’s partner has been caring for and financially supporting their children since the Applicant was sentenced. There is little evidence of the Applicant’s relationship with the children and the support he provides to them. Minimal weight should be afforded to this consideration;[38]
·The Applicant has been convicted of a serious crime and the community expectation would be that his visa remain cancelled;[39]
·The Applicant grew up in New Zealand and his family remains there. While he may require mental health support, there was no evidence he would not have access to the same services available to other citizens. He does not face any difficulties in re-establishing himself;[40] and
·The considerations weighing against revocation outweigh any considerations weighing in favour of revocation.[41]
[34] RSFIC, paras [25]-[33].
[35] RSFIC, paras [34]-[46].
[36] RSFIC, para [47].
[37] RSFIC, para [58], [61] and [64]-[69].
[38] RSFIC, para [71]-[72].
[39] RSFIC, para [76].
[40] RSFIC, para [80]-[82]
[41] RSFIC, para [83].
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[42]
[42] See also Direction No 99 para 8(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Applicant has a criminal history consisting of offending including drug-trafficking, possessing a prohibited weapon and driving offences.[43]
[43] R1, G6, pages 29-30.
As noted above, on 4 June 2021, the Applicant plead guilty to and was convicted in the District Court of Western Australia of possessing a trafficable quantity of methylamphetamine with intent to sell or supply for which he was sentenced to a concurrent terms of three years imprisonment. He was also declared a Drug Trafficker.
The Applicant also has a history of offences in New Zealand consisting of four offences including driving offences and breaching a local liquor ban.[44] A summary of the Applicant’s offences is at Annexure A.
[44] R1, G7, page 31.
With respect to the nature and seriousness of his offending the Applicant submitted that:
·He accepted his offending was serious and regretted his offending and the impact it had on his family;
·His offending was caused by mental health issues triggered by relationship issues;
·At the time of his offending, he was associating with the wrong crowd and was not maintaining a healthy lifestyle of work and exercise;
·He was not aware that his earlier traffic offences were considered criminal convictions; and
·He has remained drug-free and been of good behaviour since the offences, including during an extended period of community detention on bail prior to sentencing.
The Minister submitted that the Applicant’s offending should be treated as very serious:[45]
·The Applicant has engaged in ‘repetitive and escalating’ offending culminating in the offence which led to the cancellation of his visa;[46]
·The seriousness of his offending is reflected in his prison sentence;[47] and
·The Applicant failed to declare convictions on his incoming passenger cards and his explanation of this failure demonstrates a disregard of his earlier conduct and a lack of insight or genuine remorse with respect to his prior offending and provision of false information to the Department.[48]
[45] RSFIC, para [33].
[46] RSFIC, para [25].
[47] RSFIC, para [26].
[48] RSFIC, paras [28]–[32].
As noted above, the Applicant was convicted of ‘Possessed a trafficable quantity of methylamphetamine with intent to sell or supply it to another’ (the drug trafficking offence) in the District Court of Western Australia on 4 June 2021.[49] He was sentenced to a term of three years imprisonment.[50] He had earlier been convicted in the Perth Magistrates Court on 11 December 2020 of two counts of ‘Possessed drug paraphernalia in or on which there was a prohibited drug or plant’, ‘Possessed a prohibited weapon’ and ‘Possess a Prohibited Drug (Cannabis)’. He received fines for those offences. According to the material before the Tribunal all of those offences, including the drug trafficking offence, occurred on 11 March 2020 in Ballajura, Western Australia.[51]
[49] R1, G6, page 30.
[50] R1, G6, page 30.
[51] R2, S4 pages 10-14; R2, S7-S11, pages 18-24.
In sentencing the Applicant for the drug trafficking offence, His Honour Justice Staude DCJ summarised the facts of the offending and its context as follows:[52]
…The facts are that the police in the course of an investigation that involved the monitoring of intercepted telephone communications found out that you had arranged to broker a sale of methylamphetamine by Mark Henderson to one Charles Connell.
Both of those persons have been dealt with and each received a sentence of four years in relation to this particular transaction that involved three ounces of methylamphetamine. Each of them was sentenced for other offences as well. Now, on 11 March 2020 the police executed a Misuse of Drugs Act search warrant at your home. You were present there with Mr Henderson and another and the police found three quantities of methylamphetamine that had been brought to your house by Mr Henderson for sale to Mr Connell.
Your criminal responsibility lies in the fact that you facilitated the proposed transaction between Henderson and Connell, providing your home as a location for that transaction. You introduced one to the other. You were knowingly involved in the proposed transaction. The quantities of methylamphetamine were 27.7 grams at 60 per cent purity, 27.4 grams at 70 per cent purity and 27.5 grams at 79 per cent purity, the total weight being 82.6 grams. The police examined your mobile phone and found incriminating messages relating to the sale and supply of prohibited drugs.
That you were involved in drug dealing provides a context for this offence. You’re not to be sentenced for offences of which you have not been convicted. As to this offence, I find that you were a key player. Whilst it is not the case that you stood to benefit financially from the transaction, you would have earned kudos and benefited indirectly. The offence was committed in the context of low-level drug dealing by you. It was not a one-off or an aberration and that is clear from the text conversations on your phone.
[52] R1, G8, pages 35-36.
In terms of the Applicant’s role and the benefit he drew from the drug deal for which he was convicted, His Honour noted:[53]
You were the facilitator of the transaction. You did not stand to gain in a direct financial way from it and as the State has characterised, the situation that you were in, you were ingratiating yourself with those who you had put together for the purpose of the transaction. Otherwise your involvement in drugs was at a lower level.
So whilst I’ve observed that this was not aberrant behaviour, it was not consistent with the activity that you were otherwise engaged in and took it to a higher level. But your role was essential. You put the two parties together and you provided your home as a place for the transaction to take place.
[53] R1, G8 (Sentencing Remarks), page 37.
His Honour went on to note there were no aggravating factors in the offending other than the amount of the drug which he noted was ‘at this time in history not an unduly large amount of drugs even though it carries a very high penalty’.[54]
[54] R1, G8, page 38.
The other offences for which the Applicant was convicted in the Magistrates Court were other, less serious drug related charges. The Applicant told the Tribunal the weapons offence related to the possession of a crossbow. There was no information about why the Applicant possessed the weapon.
Prior to those offences on 11 March 2020, the Applicant had been convicted of six traffic offences including using an unlicenced vehicle (10 April 2019 and 7 November 2018), driving without authority (fines suspended) (10 April 2012), driving without authority (expired) (7 November 2018), exceeding the speed limit between 10 and 19 km/h (7 November 2018), and a further unlicenced vehicle offence (15 August 2011).[55] A further offence is listed for weapons possession, however the prosecution notice of this offence indicates it was dismissed for want of prosecution on 21 November 2018.[56] At the hearing the Applicant told the Tribunal this offence related to knuckle dusters but it was not his offence, someone else had used his name and when he went to the Court to ask for the matter to be removed from his record, it was dismissed. [57] The Respondent accepted this was not a recorded offence.[58] The Tribunal accepted this explanation as genuine and finds this offence does not form part of the Applicant’s offending history or general conduct.
[55] R1, G6, page 30.
[56] R2, S2, page 5.
[57] Transcript, page 15.
[58] Transcript, page 15.
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date. In doing so, the Tribunal must take into account a range of factors including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.[59] Particularly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered very serious.[60] In the Tribunal’s view, none of the Applicant’s offending falls within these categories of conduct.
[59] Direction No 99 paras 8.1.1(1)(a) and (b).
[60] Direction No 99 para 8.1.1(1)(a)
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal must also consider whether the offences fall into other categories of serious offending, including: causing a person to enter into, or be a party to, a forced marriage;[61] crimes committed against vulnerable members of the community, such as the elderly and disabled, or Government representatives performing their duties as such;[62] and any crime committed by the Applicant while in immigration detention.[63] In the Tribunal’s view, none of the Applicant’s offending falls within these categories.
[61] Direction No 99 para 8.1.1(1)(b)(i).
[62] Direction No 99 para 8.1.1(1)(b)(ii).
[63] Direction No 99 para 8.1.1(1)(b)(iv).
The Tribunal notes that while Direction No 99 expressly provides categories of conduct which are to be viewed very seriously or considered to be serious, it does not limit the range of conduct that may be considered serious or very serious.[64]
[64] Direction No 99 para 8.1.1(1)(a) and (b).
In assessing the nature and seriousness of the Applicant’s conduct, the Tribunal must also have regard to the sentences imposed by the Courts, the frequency of the offending and/or whether there is any trend of increasing seriousness and the cumulative effect of repeat offending.[65]
[65] Direction No 99 para 8.1.1(1)(c)-(e).
While the Respondent contended that the Applicant’s offending had increased in seriousness over time, the Tribunal did not consider this to be a feature of the history of the Applicant’s conduct and offending. The Applicant’s offending prior to 2020 was, in the Tribunals view, marked by relatively minor offences. His offending in 2020 represented a significant escalation in offending. However, the offending was of a different nature to the earlier offences, predominantly traffic offences. Further, while the Applicant had a number of convictions in 2020 and 2021, the drug related offences arose from a single incident. As such the Applicant’s offending was not markedly frequent. The Tribunal also considers that any cumulative effect of the offending was not a significant feature of the offending.
However, in the Tribunal’s view the Applicant’s offending in 2020 was serious. This is the case both considering individual instances of his offending and the context of that offending being the low-level drug dealing that the Applicant was engaging in. [66] While the Applicant was convicted of offences arising from one instance of detection, the Court’s consideration of the offence makes it clear that the trafficking offence was not aberrant and that the Applicant was engaged as a drug dealer at the time, albeit in amounts at the lower end of the scale for offending of that type. The Sentencing Remarks note that the Applicant admitted he was involved in the sale of methamphetamine to support his habit and that he was ‘operating as a user/dealer at a low-level’.[67] In the Tribunal’s view, the fact that the Applicant received a three-year custodial sentence for the offence reflects the relative seriousness of the offending, particularly having regard to the Applicant’s lack of prior offending and the principle adopted by the Courts that imprisonment is a sentence of last resort.
[66] R1, G8, pages 35-36.
[67] R1, G8, page 36.
The Applicant did not contend that his drug offending was not serious. However, he submitted that his offending had arisen from his drug use which arose in the context of depression. His offending was not for monetary gain, but to feed his habit and gain credibility with suppliers. These factors are noted in the Sentencing Remarks as detailed above. While there was no medical evidence submitted to support the Applicant’s claim to have been suffering from depression at the time of the offending, there are several references to mental health issues in the Sentencing Remarks, prison and detention material and sentencing reports.[68] Further, Ms Reid testified that the Applicant was diagnosed with depression prior to his offending. Prison material records a history of self-harm in 2018.[69] The Tribunal accepts the Applicant has suffered from depression in the past and that this was a factor in his offending. The Tribunal does not consider this mitigates the seriousness of his offending which he was engaged in for personal gain, albeit it non-financial.
[68] R2, S16.
[69] See for example R2, S15, pages 42 and 47.

Relevantly in the Applicant’s case, where offences or conduct were committed in another country the Tribunal must consider whether that offence or conduct is classified as an offence in Australia.[70] Neither the Applicant nor the Respondent made any representations with respect to this part of the considerations. The Tribunal notes that the evidence indicates the Applicant was convicted in New Zealand of being an unaccompanied learner driver, operating a vehicle carelessly, driving with excessive blood alcohol content. These are all activities which would be classified as offences in Australia in particular circumstances and as such they would appear appropriate to include when considering the Applicant’s conduct and offending overall. Similarly, while there are limited details before the Tribunal of the nature of the Applicant’s offence of breaching a local liquor ban, offences relating to liquor regulation exist in Australia including in the form of bans in some areas or communities. As such, it would appear appropriate to include that offence in the Tribunal’s consideration. However, while the Tribunal does not regard that these offences should be excluded from consideration on the basis of the factors highlighted in paragraph para 8.1.1(1)(f) of Direction No 99, given the relatively minor nature of the offences, they do not contribute significantly overall to the assessment of his offending and other conduct as serious.
[70] Direction No 99 para 8.1.1(1)(h).
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing his prior criminal offending.[71] The Respondent drew the Tribunal’s attention to copies of the Applicant’s passenger entry cards where, on six occasions between March 2011 and April 2016, he declared that he had no criminal convictions.[72] This material was also referred to in the delegate’s decision. It was submitted that this information suggests that the Applicant has repeatedly falsely declared to the Department that he had no criminal convictions.
[71] Direction No 99 para 8.1.1(1)(f).
[72] R1, G14.
The passenger movement cards include a question as follows:
If you are NOT an Australian citizen:
…
Do you have any criminal conviction/s?
(Original emphasis.)
It invites the declarant to tick ‘Yes’ or ‘No’. On each occasion, the Applicant placed a cross next to the answer ‘No’, notwithstanding his first criminal convictions on 16 August 2005 for three driving offences and in March 2006 for breach of a local liquor ban in New Zealand, and his convictions for driving an unlicenced vehicle in Australia in August 2011.[73]
[73] R1, G6 and G7.
The form includes the following declaration which the Applicant signed:[74]
The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.
[74] R1, G14.
During cross-examination, the Applicant stated that he answered ‘No’ to the question because he did not know traffic offences were criminal convictions. He was asked if he had attended court and he said he had, but he still did not believe these were criminal convictions. He thought they were like speeding tickets because he only received fines.[75] This was consistent with responses he had provided to the Department when the issue of his passenger card declarations was put to him in a ‘Natural Justice’ letter prior to the Non-Revocation Decision being made.[76]
[75] Transcript, pages 16-17.
[76] R1, G12.
Having regard to the evidence and the Applicant’s explanation for the incorrect or misleading declarations made on his passenger cards, the Tribunal finds that he did provide misleading information to the Department. However, the Tribunal accepts that he did so without fully appreciating the significance of his convictions in New Zealand and Australia at the time. While these offences are recorded and are properly treated as convictions, the Tribunal considers it is plausible the Applicant did not consider the question applied to what were generally classified as traffic offences. However, the Tribunal also accepts the Respondent’s submission that the Applicant’s responses tended to minimise those offences even after he was apprised of their status as convictions, indicating that he regarded them as ‘common mistakes’.[77] The Tribunal considers this reflects poorly on the Applicant’s appreciation of the importance of complying with legal rules, including traffic rules, but the Tribunal does not regard the failure to disclose these particular convictions as serious conduct having regard to all the circumstances of the case.
[77] Transcript, pages 15 and 16.
Overall, the Tribunal considers that making false statements to border officials in the context of entry to Australia is a matter of significant importance to the management and effective functioning of our immigration and border security system and is not something to be treated lightly. This is reflected in Direction No 99. The Tribunal regards that this conduct weighs against the Applicant in the overall assessment of his conduct, though it does not contribute significantly overall to the assessment of his offending and other conduct as serious.
There is no evidence that the Applicant had previously been warned of the consequences of his offending.[78]
[78] Direction No 99 para 8.1.1(1)(g).
The Applicant’s more serious offending was preceded by what might individually be considered to be less serious offences, predominantly driving offences. For these offences, the Applicant received fines reflecting the less serious nature of those offences. Having regard to relatively less serious nature of those offences, the Tribunal does not consider that they contribute to the assessment of the Applicant’s conduct and offending as serious.
Ultimately, the seriousness of the Applicant’s drug offences, in particular his conviction for drug trafficking cannot be discounted. Taking the Applicant’s offending and conduct as a whole, the Tribunal considers the Applicant’s offending and conduct to be serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 99 requires the Tribunal to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It directs that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[79]
[79] Direction No 99 para 8.1.2(1).
Paragraph 8.1.2(2) relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[80] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[81]
[80] Direction No 99 para 8.1.2(2)(a).
[81] Direction No 99 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[82]
[82] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
The Applicant contends that he is not a risk to the community and will not reoffend. In this regard he relied on:
·The fact that he said he is not a violent person and had no prior history of offending;[83]
·His commitment to maintaining a drug-free and prosocial lifestyle is demonstrated by the 14 months he spent on home detention prior to his sentencing;[84]
·His demonstrated remorse and willingness to make improvements to his life since his arrest and incarceration, including undertaking voluntary courses, attending counselling, staying away from anti-social peers and engaging in healthy lifestyle choices such as exercise;[85]
·He has dealt with the underlying causes of his offending and no longer suffers from depression or takes drugs;[86]
·His offer of employment and stable accommodation with his family;[87] and
·His commitment to supporting his partner and children and being present in their lives.[88]
[83] R1, G10a page 52.
[84] R1, G10a; R1, G8 page 36.
[85] R2, S16.
[86] Transcript, page 11; R2, S16.
[87] A4; R2, S16.
[88] R1, G10a; A1.
The Minister submitted that:
·There was evidence the Applicant had unmet criminogenic treatment needs with respect to both mental health and drug use;
·There was insufficient evidence regarding the Applicant’s mental health issues and how this impacted his risk of reoffending; and
·The protective factors for the Applicant such as family, accommodation and employment are not substantially different to those present at the time of the offending and were not sufficient to prevent the Applicant from offending.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[89]
[89] Direction No 99 para 8.1.2(2)(a).
The Applicant has been convicted of a serious offence relating to the intended sale and supply of illicit drugs. The Parole Assessment notes that ‘Whilst there is no identifiable physical victim in Mr Moli’s offending, he explained through engaging with Narcotics Anonymous, he has recognised the consequences of his offending. Mr Moli explained he has seen how illicit substances impacts people differently and he is not proud to have contributed to that’.[90] In the Tribunal’s view, the harm which would be caused to individuals who purchase and consume those drugs and to the community as a whole, which bears the costs of drug crime and drug addiction and treatment, are significant.[91]
[90] R2, S16 page 51.
[91] See for example SCJD and Minister for Home Affairs [2018] AATA 4020, at [80]-[83].
In RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266, McKerracher J noted at [48]:
It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. … the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result.
This passage of His Honour’s decision was recently cited with approval by Colvin J in JNMKv Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [43]–[45].
In the present case, while it might be that the Applicant’s criminal activities did not cause harm to a directly identifiable victim, that does not diminish the serious harm which may flow from the offending, harm which the offences are designed to protect against: in this instance the use of illicit drugs. In the Tribunal’s view, and adopting the approach of the authorities, it does not assist the Applicant that the specific victim or victims of his offending cannot be identified. Drug trafficking attracts serious criminal sanction because of the risk of harm it represents to individual drug users, potential users and to the community which bears the costs of drug use, treatment and related crime.
The Applicant has also engaged in a range of less serious offences, including drug related offences (committed at the time of the drug trafficking offence) and traffic offences over a number of years. The Applicant has engaged in a broad range of traffic offences including repeatedly driving an unlicenced vehicle, speeding and driving under the influence of alcohol. The Tribunal notes that traffic offences also often do not involve an identifiable victim who is harmed as a result of the offence. However, this does not limit the seriousness of those offences, which attract sanction because of the broader risk they present of causing harm. The Tribunal takes driving offences seriously, and notes the serious harm, such as injury or death, that road users can suffer as a result of such offences. Were the Applicant to reoffend in a similar manner in the future, members of the public would suffer serious harm as a result.
The Tribunal is satisfied that the harm which would be caused to the community were the Applicant to offend in a similar manner, through participating in drug trafficking or thorough repeated driving offences, would be serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[92]
[92] Direction No 99 para 8.1.2(2)(b).
The Applicant contends he will not reoffend. He testified that he is remorseful and that he has spent his time since he was arrested dealing with his mental health and addiction issues and establishing a healthy routine. In his statement to the Tribunal, he said:[93]
[93] A1.
I made the mistake of taking life for granted and did not realise what I had. I have a beautiful family who means the world to me and without them my life will not be complete. I now realise that going to prison and being in detention that I have put my family through hardships where I cannot express with words. I have learned my lesson the hard way. I am wholeheartedly remorseful for my actions leading to this circumstances. I will never ever put myself or my family through a situation like this ever again.
.....
I am wholeheartedly remorseful for my actions leading to my offending and my incarceration which fills me with great regret and shame. I take full responsibility for all my actions.
With respect to the factors that contributed to his offending the Applicant said:[94]
I have realised that looking after my mental health is important for my well-being and for those who [sic] around me. I have participated in over the phone counselling for my depression whilst I was in home detention and I am currently attending counselling in immigration detention. I will be attending counselling sessions upon my release in the community as well.
Further with respect to his rehabilitation he stated:[95]
…I have made great progress towards my rehabilitation and I have been participating in smart recovery online meetings to continue my journey of rehabilitation. I will continue to do so even after my release from immigration detention. My time in incarceration and immigration detention has taught me a great deal. Where I had time to reflect on my actions leading me to this situation and I have learned that my bad behaviour and my past addictions have affected me and my family and the wider community. I understand that living in Australia in [sic] not a right but a privilege. If I were to be released back in to [sic] the Australian community I will not take that opportunity for granted. I will stay on the path of rehabilitation and getting treated for my depression is the only way to have a successful life. I will work hard and be a positive contributing member of the Australian Community.
[94] A1
[95] A1.
The Tribunal notes that while his statement suggested that the Applicant planned to continue treatment in the community for depression, before the Tribunal, he said that he believed he no longer suffered from depression. This position was supported by Ms Reid. Further, when asked about whether he had made any inquiries about accessing mental health support in the community, he said he had not yet, and he thought his online SMART Recovery course was working for him. [96]
[96] Transcript, page 27.
When asked what she thought the Applicant’s rehabilitation needs would be in the community, Ms Reid said she thought he needed to get back to his normal routine. She said that she would like him to continue with whatever he was doing ‘inside’ and that she thought the Applicant knew what he needed to do.[97]
[97] Transcript, page 33.
As noted earlier, there was no medical evidence before the Tribunal with respect to the Applicant’s medical health diagnosis or his current treatment needs. The Sentencing Remarks noted that at the time of the Applicant’s offending, he was suffering from ‘symptoms of depression that related to loss of employment and a relationship’. [98] More recently, in August 2022 the Parole Assessment noted with respect to the Applicant’s health issues that he had confirmed he had been diagnosed with depression in 2019 ‘however this is now well managed’.[99]
[98] R1, G8, page 36.
[99] R2, S16, page 52.
Further in the Applicant’s favour, the Tribunal acknowledges the Applicant’s prior good character and lack of serious offending history. The Tribunal also acknowledges the effort he has made in prison to rehabilitate himself. This is to be commended and encouraged. However, the Tribunal acknowledges the Applicant has attempted to proactively engage in positive and self-improving activities. The Tribunal regards that these factors weigh in his favour.
While there was some evidence the Applicant had failed to report to work on occasion at the earlier stages of imprisonment, his reported conduct repeatedly was positive. In addition, he complied with reporting bail conditions in the community prior to sentencing. This is to the Applicant’s credit.
The Applicant expresses a clear desire to remain in Australia and acknowledged it was a privilege to do so.[100] The Tribunal considers he understands the likely migration consequences of any future offending. Ms Reid is also cognisant to this risk. The Tribunal accepts that the threat of further visa cancellation, should he reoffend, would act as a protective factor against the Applicant reoffending.
[100] A1.
Given that the Applicant’s prior offending occurred in the context of mental health issues that he told the Tribunal were triggered by relationship issues with Ms Reid, the Tribunal regards that there is a risk associated with his reliance on his relationship with Ms Reid and her family as a protective factor against future offending.
The Applicant has been assessed to be a low risk of reoffending in the sentencing context and in the prison assessment context, where he was assessed to be at low risk/need in terms of access to general offending rehabilitation programs.[101] While the basis of that assessment is not in the information before the Tribunal and it appears to relate principally to access to programs in the prison context, the Tribunal places some weight on that assessment in terms of assessing ongoing risk of reoffending. The Tribunal also places some weight on the fact the Parole Board have granted parole to the Applicant and any requirements for parole, including random urinalysis testing as directed and compliance with mental health treatment as directed by a medical practitioner, will be in place until the expiry of parole on 14 April 2024. While the conditions set for parole, including whether the Applicant is required to undertake mental health treatment, are not a matter for the Tribunal, the Tribunal accepts that the fact the Applicant would be on parole until 2024 would act as a deterrent to him reoffending in that period. Further, there is evidence urinalysis testing has been a motivator for the Applicant in the past in abstaining from substance use and the Tribunal considers such a requirement for a further year lowers the risk of the Applicant returning to illicit drug use at least in the short term.
[101] R2, S16, page 52.

There is limited supporting evidence regarding any programs the Applicant has undertaken to address the causes of his offending, specifically his drug use and mental health issues. The Applicant claimed to have undertaken counselling sessions with Narcotics Anonymous in prison. There were notes in prison records indicating that he had attended three voluntary Narcotic Anonymous meetings between June 2022 and July 2022.[102] In testimony before the Tribunal, the Applicant stated he had attended Narcotics Anonymous classes fortnightly in the ‘last prison’ and had maybe attended 10 or 11 classes.[103] The Tribunal notes the Applicant entered Wooroloo Prison Farm, the last prison he was in January 2022.[104] The record of him having undertaken three Narcotics Anonymous courses was made in August 2022. On balance, despite records the Tribunal accepts the Applicant attended Narcotics Anonymous for several months prior to his parole.
[102] R2, S22, page 93.
[103] Transcript, page 23.
[104] R2, S23, page 98.
The Applicant also contended he had undertaken a SMART Recovery program online from detention. The Applicant provided a record to the Tribunal that indicated he had undertaken SMART Recovery classes on 9 and 18 March 2023. The Applicant indicated he had undertaken additional classes, but did not have the records of those available. He said that he had undertaken around 12 to 15 classes. SMART Recovery is a general addiction course.[105] In addition, the Applicant submitted a certificate for a ‘Drug and Alcohol Abuse’ course in March 2023. He told the Tribunal this was an online course over two nights with seven contact hours in all.[106]
[105] Transcript, page 23; A6.
[106] A5.
The Tribunal accepts the Applicant has undertaken a number of voluntary courses directed to addressing issues of addiction and substance abuse. This is to the Applicant’s credit. However, the Parole Assessment noted that:[107]
Mr Moli presents with criminogenic needs related to substance misuse issues, mental health concerns and a lack of prosocial routine. Given Mr Moli has not had the benefit of engagement with treatment intervention beyond voluntary Narcotics Anonymous whilst in custody, his criminogenic needs are outstanding which may increase his risk of reoffending.
[107] R2, S16, page 53.
When asked about his plans for treatment or counselling in the community, the Applicant indicated he was happy to partake in counselling if required for parole, but he has not made any inquiries about what kind of supports might be available to him in the community. He said he was doing SMART Recovery and that was working for him.[108] Earlier he testified that he believed he was no longer suffering from depression. He had not seen a medical professional to confirm his mental health status but had requested to get a mental health assessment at the detention centre. This had not occurred at the time of the hearing.[109]
[108] Transcript, page 27.
[109] Transcript, pages 11-12.
The Tribunal is concerned that the Applicant does not appear to have a clear plan for addressing his criminogenic treatment needs if he remains in Australia in the community. While he is happy to comply with parole requirements, in the Tribunal’s view his testimony indicated a lack of insight into the ongoing treatment needs identified in the Parole Assessment. This causes the Tribunal concerns regarding the risk of further offending if treatment needs are not addressed. In this regard, the Tribunal notes the Applicant identified as triggers for his depression issues in his relationship, including his partner communicating with another man and pressures of being the breadwinner. In the Tribunal’s assessment, these are the sorts of stressors which are likely to arise in the ordinary course of living in the community and as such this heightens the concern that if mental health supports are not in place, the risk of substance abuse and reoffending is elevated.
There is no evidence before the Tribunal of psychological or other risk assessments of the Applicant relevant to reoffending undertaken in a sentencing context. Relying on the Parole Assessment, and the evidence before it and notwithstanding concerns regarding the Applicant’s plan for treatment in the community, the Tribunal considers that the Applicant’s risk of reoffending in a similar manner is low. There is no evidence to suggest that the Applicant’s risk is something less than a low risk. While the Applicant maintains he will not reoffend, the Applicant’s unmet criminogenic needs and lack of clear plan for addressing these needs in the community cause the Tribunal to regard that there is an ongoing risk of reoffending, albeit low.
Having considered all evidence of the Applicant’s circumstances, the Tribunal considers the Applicant’s overall likelihood of reoffending to be low. Therefore, given the significant impact of drug trafficking on the Australian community, the Tribunal regards that even a low risk of reoffending is unacceptable. If the Applicant does engage in offending consistent with his previous offending, there is a risk of significant harm to the community.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence or information before the Tribunal to suggest that the Applicant has engaged in offending or conduct that constitutes family violence and therefore this consideration is not relevant in the Applicant’s circumstances.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3(1) of Direction No 99 provides that:
Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or people who have an indefinite right to remain in Australia.
The Applicant submitted that his removal to New Zealand would have a significant impact on his partner and his children and his extended family in Australia.
The Minister accepted that the Applicant ties to Australia weighed in favour of revocation. The Minister accepted the Applicant had ties to Australia through his immediate and extended family, and to the community through his employment. However, the Minister submitted that less weight should be afforded to this consideration, in circumstances where the Applicant’s partner has indicated that they will consider moving the family to New Zealand as a last resort, if the Applicant’s visa remains cancelled. The Minister contended that while more weight under this consideration must be afforded to the Applicant’s ties to his children, minimal weight should be afforded to the consideration, having regard to the risk the Applicant will return to illicit drug use and potentially exposing the children to this conduct.[110]
[110] RSFIC, paras[57]-[58].
The Minister also contended that factors such as the Applicant’s extended family living largely interstate and his age when he arrived in Australia, at 24, supported less weight being afforded to his Australian ties. [111]
[111] Transcript, page 37
Overall, the Minister contended that this consideration would not outweigh the considerations against revocation.
In his request for revocation the Applicant stated with respect to his ties to Australia: [112]
I came to Australia in 2011. I was instantly drawn to the people, the landscape and weather. It is truly the best place in the world.
…
My families [sic] life is here, it’s a place I want to reside forever.
[112] R1, G12, pages 81 and 83.
In response to the question asking the Applicant to describe the impact on family members of the cancellation of his visa, he noted:[113]
My partner and children would be absolutely devastated, so would the rest of my family members.
He went on to submit that:[114]
Me not being in Aust [sic] to provide for my family would cause the Aust [sic] public burden as my partner would need financial assistance to raise my kids
[113] R1, G12, page 75
[114] R1, G12, page 78.
It is evident that the Applicant’s family ties to Australia are strong. The Applicant’s partner, and his two children reside in Australia. He has extended family including cousins living in Australia, mostly on the Eastern seaboard. His parents, brother, sister and their families live in Hastings in New Zealand. His family is originally from Samoa and he has extended family in that county also.
Several statements provided by the Applicant confirmed his return would place emotional and financial strain on his family.[115] In cross-examination, the Applicant told the Tribunal that Ms Reid and their daughters would not relocate with him to New Zealand. He stated that this was not an option:[116]
Because, I mean, [Ms L] is turning 10 this year. Everything she knows has been - her schooling and everything else. And Felicity’s immediate family is all here.
[115] A2, A3 and A7.
[116] Transcript, page 19.
However, Ms Reid stated that she and the girls would move, but that it was a ‘last resort’. When asked if she would consider moving to New Zealand if the Applicant were returned there, she stated:[117]
Yes. Obviously if that was the case, then, you know, it would be very, very difficult. We want to stay together obviously. Financially it probably wouldn’t - I mean, the intention to be together would be there but whether financially that can happen or not, I wouldn’t know until it did happen but, yes, ultimately we would financially need him to - obviously we want him to stay here, financially, emotionally, with the family. You know, it would be very, very difficult for us to move there with him. You know, for me specifically to afford to have two children and me to move our lives, it would be very, very, very difficult. Almost impossible. But I couldn’t say for sure obviously because, you know, it’s something that we would need to discuss further and it would be a last resort kind of thing for us.
[117] Transcript, page 31.
Though she indicated that Mr Moli’s family were unlikely to be able to offer them support.[118]
[118] Transcript, page 32.
Ms Reid testified that the Applicant’s incarceration and detention had placed a burden on the family which would be increased if he is returned to New Zealand. She noted she was working two jobs to support her daughters and relied on family members for childcare. She noted his removal would take an emotional toll on the children, particularly her eldest daughter who had ‘suffered mentally’ during the Applicant’s incarceration and ‘continues to show signs of stress over the situation’.[119] Statements from the Applicant’s friends, Mr Mataipule and his de facto father-in-law, Mr Reid, support this.[120]
[119] A2.
[120] A3, A7.
The Tribunal accepts the Applicant’s two minor children, who are Australian citizens, are likely to suffer detriment if he is removed. The children were previously living with the Applicant and their mother. Although the children would continue to live with their mother, they will be deprived of having a father in their lives who may be able to support them financially and emotionally, and with whom they can build and maintain an in-person bond. If the Applicant is returned to New Zealand, his young children are unlikely to be able to see him on a regular basis for some time, notwithstanding their mother testified that they would move to New Zealand as a ‘last resort’ to keep the family together. The Tribunal accepts there is uncertainty as to if and when this would occur.
Ms Reid would suffer significant emotional financial hardship if the Applicant’s visa remains cancelled. She would remain the sole carer for her children for the immediate future and would bear the ongoing burden of their financial support while the Applicant re-establishes himself. Her extended family would also bear the burden of continuing to support her and the children emotionally and with practical assistance such as childcare. Ultimately Ms Reid may also be forced to decide whether to take the last resort option of relocating to New Zealand. Doing so would require her to find new employment, resettle and separate from her own immediate family. In this regard, the Tribunal notes she lives with her sister and that she lost her mother just prior to the Applicant entering prison. The Tribunal accepts moving would cause her significant hardship, albeit she has indicated a preparedness to take that step.
As outlined above, the Applicant has resided in Australia for approximately more than 12 years. He initially arrived in 2011 at the age of 24. His first offence in Australia was a traffic related offence in August 2011. His next offence was in 2018. His serious offending was in March 2020, nine years after he arrived in Australia. In the period prior to his serious offending, the Applicant raised his eldest daughter and contributed to the community through work.
There was limited evidence of contributions to the community other than through his employment. He had an offer of employment on release from Mr Petia and the Tribunal notes his years of prior work and accepts he intends to work again if he remains in Australia, and to a make a contribution to the community and his family through working and supporting them financially.
In summary, the Applicant has close ties to the Australian community because his partner, children and other extended family members reside in the Australian community. Further, the Applicant has been in Australia for an extended period and has made some positive contributions to the Australian community, primarily through his work. The majority of the time he spent in Australia has been generally law-abiding and positive. However, the Applicant did not spend his formative years in Australia and retains close family connections to New Zealand. His immediate family have indicated a preparedness to move to New Zealand if he is returned there.
Overall, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No 99 provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) of Direction No 99 continues to outline the factors that a
decision-maker must consider when determining the best interests of a child affected by the decision:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
In his revocation request, the Applicant identified three minor children in his life: his two daughters with Ms Reid, Ms L, who is nine years old, and Ms R, who is three years old, and a ‘baby’ nephew who was a newborn at the time of the request and is the child of Ms Reid’s brother. As no other information was provided about the Applicant’s nephew, and no negative impacts on that child were raised in the revocation request or in information before the Tribunal, it Is not possible for the Tribunal to determine the child’s best interests with respect to the ‘baby’ nephew. Accordingly, the Tribunal has considered his interests along with the Applicant’s extended family members in the consideration of the Applicant’s ties to Australia.
Ms L and Ms R are both Australian citizens who currently live with their mother in a home they share with their aunt (Ms Reid’s sister). Most of the evidence regarding the interests of the Applicant’s minor children was delivered jointly and the Tribunal has considered them together. The children are siblings and there was no evidence before the Tribunal suggesting that their interests differed significantly with respect to the decision, save for the difference in their age. Accordingly, the Tribunal has considered their interests together, save for where there was evidence specific to one of the children.
The Applicant submitted that the best interests of his minor children in Australia were a significant reason to revoke the Cancellation Decision. He submitted that his children would suffer emotional and financial hardship if he were removed from Australia and would be denied a personal relationship with him. He submitted that this would have serious impacts on the children and on their mother, who was their primary caregiver and who had been working two jobs to support them since his incarceration. The Applicant submitted that he has a strong connection to each of his children and that his physical presence in their lives is essential to their best interests.
The Respondent contended that the consideration should be given less weight in the Applicant’s favour where there was limited evidence about the role the Applicant had played in the children’s lives, he had been in prison or detention for most of his younger daughter’s life, the children are cared for by their mother who has support from family. Ms Reid has also indicated that as a last resort, they would consider moving the family to New Zealand if the visa remains cancelled.[121]
[121] Transcript, page 31.

The parties did not make representations with respect to the broader legal consequences of the decision. However, submissions with respect to other considerations including on the extent of impediments to removal proceeded on the basis that the Applicant’s removal from Australia would be permanent, reflect the legal consequences of cancellation under s 501.
While the Tribunal acknowledges the legal consequences of a decision not to revoke cancellation of the visa, as the effect of cancellation and removal are taken into account under other considerations including the Applicant’s ties to Australia, the best interests of his children and the extent of impediments if removed, the Tribunal does not consider this consideration weighs either for or against cancellation in the Applicant’s circumstances.
Extent of impediments if removed
Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of New Zealand. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Applicant accepted he would have access to the same services and supports as are available to citizens of New Zealand on return there. He submitted he may have difficulty finding employment because he was not sure about the labour market in New Zealand. He also submitted that his parents could not support him because they were getting older and his siblings had their own families and could not offer him support. He said he would suffer emotionally from the separation from his partner and children, and they would suffer financially if he was not in Australia to support them.[145]
[145] Transcript, pages 19-20, 26 and 33.
The Minister submitted that while the Applicant may require mental health support in New Zealand, there is no suggestion he would not have access to the same level of health care as other New Zealand citizens. The Minister submitted that the Applicant would not face any difficulty re-establishing himself in New Zealand and that there were no language or cultural barriers facing the Applicant on return to New Zealand. The Minister submitted that the Applicant was likely to ‘maintain the same standard of living as in Australia, given that there is no evidence he will be unable to access the same social, medical and economic support as other citizens of New Zealand.’[146] The Minister submitted that were evidence of any emotional or financial hardship on return provided, those factors may favour revocation, but would not be insurmountable.[147]
[146] RSFIC, para [81].
[147] RSFCI, para [82].
The Tribunal asked the Applicant about his family circumstances in New Zealand. He confirmed he had returned their several times, the last visit in 2016 for his brother’s wedding. His partner had visited New Zealand several times and had taken his oldest child there in 2019 to stay with his parents. This was during the period he was ‘using drugs’ and she had travelled there to receive support from the family.[148] The Tribunal asked if it would be reasonable to assume his family would assist him if he needed help or support on return and he said:[149]
If I really needed it, but my last trip to New Zealand when I stayed with them, there were no kids there. My sister didn’t have a partner. Just space is all, yes.
[148] Transcript, page 25.
[149] Transcript, page 26.
The Tribunal asked whether there was any reason to think that the usual sorts of services that are available to New Zealanders would not be available to the Applicant for some reason and he responded that it was ‘[j]ust work in general, Senior Member, I’m not sure about there.’[150] The Tribunal confirmed that he was only concerned about the employment market in New Zealand and he confirmed that is what he was uncertain about.[151]
[150] Transcript, page 26.
[151] Transcript, page 26.
The Tribunal accepts that the Applicant will suffer emotional distress as a result of deportation and separation from his family. There was no medical evidence before the Tribunal with respect to any mental health issues suffered by the Applicant which may require treatment or support on return to New Zealand. However, the Parole Assessment indicates the Applicant has ongoing mental health needs and there is evidence, albeit not medical evidence, that he has suffered depression in the past. There was also evidence the Applicant had attempted suicide in the past. The Tribunal considers that any mental health conditions suffered by the Applicant may worsen as a result of his return and separation and he may need mental health support as a result. The Tribunal considers that given his history of self-harm he may be at risk of self -harm without mental health support if he is returned to New Zealand. This lends weight in favour of revocation. However, there is no evidence that mental health supports would not be available to the Applicant in New Zealand and while the Tribunal accepts he may suffer emotional distress as a result of his removal, the Tribunal does not consider this a impediment to be insurmountable in the Applicant’s circumstances, given he would have access to health services in New Zealand should he choose to engage with such services.
The Tribunal considers there is nothing in the information available to it to suggest that the Applicant would be impeded in establishing himself and maintaining basic living standards in New Zealand, in the context of what is generally available to other citizens of that country, taking into account the Applicant’s particular circumstances, including mature age, work experience and lack of language or cultural barriers in New Zealand.[152] The Tribunal also notes he has immediate family in New Zealand which he accepts would support him if needed, although at expense to their own needs and comfort. In this regard the Tribunal notes that Ms Reid has previously sought short term emotional support from the Applicant’s family during the period of his drug use. Further, Ms Reid highlighted separation from his family and their support as a factor in the Applicant’s initial depression.[153] This indicates the Applicant and his family have a relationship with the Applicant’s family in New Zealand which it is reasonable to conclude is supportive and would continue to be so.
[152] Direction No 99 para 9.2.
[153] Transcript, page 30.
There was no evidence the Applicant would suffer any significant cultural barriers on return to New Zealand having spent his formative years in New Zealand and made return visits there.
The Tribunal accepts the Respondent’s submission that the Applicant would have access to Government supports in the form of social, medical and economic supports in New Zealand and infers these would be of an equivalent quality to those available in Australia.[154] The Applicant accepted this would be the case, indicating his concerns about his circumstances on return related to his prospects of re-employment given the uncertainties of the labour market. While the Tribunal accepts the Applicant may face some initial challenges establishing access to such services and employment, the Tribunal does not accept this presents a significant impediment to his return having regard to all of his circumstances.
[154] Webb v Minister for Home Affairs [2020] FCA 831 per Anastassiou J at [87]-[88], [98].
The Tribunal accepts that the Applicant is likely to face emotional hardship with respect to his separation from family members if returned to New Zealand. Although there was some uncertainty as to the potential for Ms Reid and their daughters to relocate, the Tribunal accepts that were they to do so, there would be financial and emotional hardship for the family involved in such a move.
Overall, the Tribunal finds that the Applicant may encounter some difficulty establishing himself if he were to return to New Zealand, but does not regard these difficulties as insurmountable. The Tribunal also accepts that the Applicant would suffer emotionally as a result of separation from his Australian family members and finds that this would make his resettlement in New Zealand more difficult.
Overall, taking into account all of the evidence, the Tribunal finds that the extent of impediments if removed, weighs moderately in favour of revocation of the Cancellation Decision.
Impact on victims
Paragraph 9.3 of Direction No 99 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
As there is no information before the Tribunal regarding the effect of a decision under s 501 with respect to the Applicant’s visa application on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, this consideration is not relevant in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.4 of Direction No 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests.
The Applicant testified he has an offer of employment on his release from detention with Jenkins Bros Removals.[155] Mr Petia’s letter confirms this offer.[156] However, neither the Applicant nor Mr Petia suggested that the business would be impacted if the Applicant were not available to take up that general offer of employment due to not being allowed to remain in Australia.
[155] A1.
[156] A4.
The Tribunal considers this consideration weighs neither for nor against revocation of the Cancellation Decision in the Applicant’s circumstances.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs strongly against revocation of the cancellation of the Applicant’s visa.
The consideration of family violence was not relevant in the Applicant’s circumstances.
The strength, nature and duration of the Applicant’s ties to Australia weigh moderately in favour of revocation of the cancellation of the Applicant’s visa.
The best interests of the Applicant’s minor children weigh strongly in favour of revocation of the cancellation of the Applicant’s visa.
The expectations of the Australian community, weigh moderately against the revocation of the cancellation of the Applicant’s visa.
In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that the extent of impediments if removed weighs moderately in favour of revoking the cancellation of the Applicant’s visa. The Tribunal has found that the legal consequences of the decision and the impact on Australian businesses weigh neither for nor against revocation in the Applicant’s circumstances.
The Applicant has committed a serious offence of drug trafficking. The community’s tolerance for this type of offending is low because of the unacceptable risk it presents of serious harm to the community, perpetuating the trade and consumption of illicit drugs. The Applicant has acknowledged those impacts and regrets his offending. There is a risk he will reoffend, albeit a low risk. Given the nature of his offence the Australian community would expect his visa to remain cancelled.
Balanced against this, the Applicant has made a life in Australia with his Australian citizen partner and young children. His ties to the community through his family and employment history are strong. His children have been raised in Australia among their extended family here, some of whom they live with. The Applicant is committed to parenting his children with his partner and supporting them financially and emotionally. It is in their best interests that the cancellation be revoked. And while his impediments on return to New Zealand are not insurmountable in circumstances where the Applicant has had a history of mental health issues and may face an extended separation from his partner and children, the impediments to his removal to New Zealand cannot be discounted.
Paragraph 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. Nothing has been presented which would cause the Tribunal to find that that general principle should not apply in the present case. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children, together with the other consideration of the extent of impediments if removed outweigh the considerations against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the decision not to revoke the cancellation of the Applicant’s visa and to substitute a decision that the cancellation of the Visa be revoked.
DECISION
The decision of the delegate of the Respondent dated 6 January 2023 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is set aside and substituted with a decision that the cancellation of the Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 204 (two hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

................[Sgd]........................................................
Associate
Dated: 3 April 2023

Date of hearing: 23 March 2023

Applicant: In person

Solicitors for the Respondent: Mr A Gardner, Minter Ellison
Annexure A – Table of the Applicant’s Offending
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ run on 20 July 2021[157] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 12 March 2020.[158]
[157] R1, G6.
[158] R2, S6.

Conviction Date Court Offence Offence Date(s) Court Result

1. 15 August 2011 Joondalup Magistrates Court Unlicensed Vehicle (Permit Use) 4 July 2011 $50 fine

2. 7 November 2018 Midland Magistrates Court Exceed speed limit in a builtup area; Between 10 and 19km/h 6 September 2018 $200 fine

3. 7 November 2018 Midland Magistrates Court Used an unlicensed vehicle 6 September 2018 $200 fine

4. 7 November 2018 Midland Magistrates Court No authority to drive (expired) 6 September 2018 $200 fine

5. 21 November 2018 Perth Magistrates Court Possessed a prohibited weapon[159] Unknown $200 fine

6. 10 April 2019 Midland Magistrates Court No authority to drive (fines suspended) 1 February 2019 $300 fine

7. 10 April 2019 Midland Magistrates Court Used an unlicensed vehicle 1 February 2019 $300 fine

8. 11 December 2020 Perth Magistrates Court Possessed drug paraphernalia in or on which there was a prohibited drug or plant 11 March 2020 $250 fine; Order for destruction, start date: 11 December 2020

9. 11 December 2020 Perth Magistrates Court Possess a Prohibited Drug (Cannabis) 11 March 2020 $350 fine; Order for destruction, start date: 11 December 2020

10. 11 December 2020 Perth Magistrates Court Possessed a prohibited weapon 11 March 2020 $750 fine; Forfeiture order, start date: 11 December 2020

11. 11 December 2020 Perth Magistrates Court Possessed drug paraphernalia in or on which there was a prohibited drug or plant 11 March 2020 $250 fine; Order for destruction, start date: 11 December 2020

12. 4 June 2021 Perth District Court of Western Australia Possessed a trafficable quantity of methylamphetamine with intent to sell or supply it to another 11 March 2020 Three years’ imprisonm-ent concurrent[160]; Drug Trafficker Declaration; Order for Destruction
[159] The Tribunal notes that the above offence of ‘Possessed a prohibited weapon’ is recorded in only the ‘Check Results Report’.
[160] Although the records mark this as a concurrent sentence there is no mention of this in the sentencing remarks and no indication the sentence was concurrent with any other sentence.
TABLE OF THE APPLICANT’S OFFENDING IN NEW ZEALAND
Offending table details drawn from a report titled “New Zealand Police in Confidence” detailing the Applicant’s offences committed in New Zealand, produced on 19 August 2021.[161]
[161] R1, G7.

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	15 August 2011	Joondalup Magistrates Court	Unlicensed Vehicle (Permit Use)	4 July 2011	$50 fine
2.	7 November 2018	Midland Magistrates Court	Exceed speed limit in a builtup area; Between 10 and 19km/h	6 September 2018	$200 fine
3.	7 November 2018	Midland Magistrates Court	Used an unlicensed vehicle	6 September 2018	$200 fine
4.	7 November 2018	Midland Magistrates Court	No authority to drive (expired)	6 September 2018	$200 fine
5.	21 November 2018	Perth Magistrates Court	Possessed a prohibited weapon[159]	Unknown	$200 fine
6.	10 April 2019	Midland Magistrates Court	No authority to drive (fines suspended)	1 February 2019	$300 fine
7.	10 April 2019	Midland Magistrates Court	Used an unlicensed vehicle	1 February 2019	$300 fine
8.	11 December 2020	Perth Magistrates Court	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	11 March 2020	$250 fine; Order for destruction, start date: 11 December 2020
9.	11 December 2020	Perth Magistrates Court	Possess a Prohibited Drug (Cannabis)	11 March 2020	$350 fine; Order for destruction, start date: 11 December 2020
10.	11 December 2020	Perth Magistrates Court	Possessed a prohibited weapon	11 March 2020	$750 fine; Forfeiture order, start date: 11 December 2020
11.	11 December 2020	Perth Magistrates Court	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	11 March 2020	$250 fine; Order for destruction, start date: 11 December 2020
12.	4 June 2021	Perth District Court of Western Australia	Possessed a trafficable quantity of methylamphetamine with intent to sell or supply it to another	11 March 2020	Three years’ imprisonm-ent concurrent[160]; Drug Trafficker Declaration; Order for Destruction

Conviction Date	State Jurisdiction	Offence	Offence Date(s)	Court Result
1.	16 August 2005	Porirua District Court	Learner Drive Unaccompanied	23 September 2004	Convicted and discharged
2.	16 August 2005	Porirua District Court	Operated A Vehicle Carelessly	23 September 2004	Convicted and discharged
3.	16 August 2005	Porirua District Court	Drove With Excess Blood Alcohol Content Blood/Breath = 144	23 September 2004	Convicted and sentenced; $300 fine; $130 court costs; $10,095 reparation; Disqualified from driving for six months from 16 August 2005
4.	31 March 2006	Wellington District Court	Breach Of Local Liquor Ban	25 March 2006	Convicted and sentenced; $100 fine

[2023] AATA 666

3 April 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Standing

Date of hearing:	23 March 2023
Applicant:	In person
Solicitors for the Respondent:	Mr A Gardner, Minter Ellison