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

Moody and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4560 (11 November 2020)
Division:GENERAL DIVISION
File Number:2020/5108
Re:Christopher Moody
APPLICANT

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

DECISION
Tribunal: Member Rebecca Bellamy
Date:11 November 2020
Place:Brisbane

The decision under review is affirmed
.......................[SGD].................................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Resident Return (Permanent) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500; [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
HZCP v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
11 November 2020
THE ISSUE BEFORE THE TRIBUNAL

The Applicant is a 32-year-old citizen of the United Kingdom. In 4 August 2007, when he was 19 years old, he moved to Australia. The most recent visa granted to him was a Class BB Subclass 155 Resident Return (Permanent) visa (“visa”).[1]
[1] Exhibit G1, Section 501 G-Documents, G2, pages 62 to 65.
On 6 November 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 27 November 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 19 August 2020, the Respondent decided not to revoke the cancellation.[4]
[2] Ibid, page 65.
[3] Ibid, page 229.
[4] Ibid, page 26.
The Applicant subsequently lodged an application for review in this Tribunal on 24 August 2020.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[5] Ibid, pages 3 to 9.
The hearing of this application proceeded on 27 and 28 October 2020. The Applicant gave evidence via video conference. The Applicant’s mother, one of his half-sisters, his partner and a friend gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]
[8] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 21 August 2019, the Applicant was sentenced to a term of imprisonment of four years with an effective non-parole period of 17 months. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[9]
[9] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[10] and “Other considerations”.[11] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
·Protection of the Australian community from criminal or other serious conduct;
·The best interests of minor children in Australia; and
·Expectations of the Australian community.
[10] The Direction, paragraph 13.
[11] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
·International non-refoulement obligations;
·Strength, nature and duration of ties;
·Impact on Australian business interests;
·Impact on victims; and
·Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13]
[12] [2018] FCA 594.
[13] Ibid at [23].
BACKGROUND AND OFFENDING
The Applicant was born in the United Kingdom. He moved to Australia with his mother, step-father, sister and two half-sisters, in August 2007 when he was 19 years old.
Traffic offences
The Applicant committed the first of many traffic infringements in September 2007, being ‘exceed speed zone by more than 20km/h but not more than 30km/h over the speed limit’. He received a fine for this offence.[14]
[14] Exhibit G1, Section 501 G-Documents, G2, page 60.
Between November 2007 and April 2008, the Applicant committed the following traffic infringements:
·“Driving at more than 20 km/h but less than 30km/h”;
·“Driving at more than 30 km/h but less than 40km/h”;
·“Start/drive vehicle in a way that makes unnecessary noise/smoke”; and
·“Improperly make a right turn”.
For each of these offences the Applicant was fined and on 10 May 2008 the Applicant’s driver’s license was suspended for five months following the accumulation of demerit points.
On 1 August 2008 while his licence was suspended, the Applicant was caught driving unlicensed and on 20 August 2008 he was fined and disqualified from driving for six months.
On 22 October 2008 during this period of disqualification, the Applicant was convicted of ‘Disqualified driving’ and two other minor traffic infringements. He was fined $1,900 and he was disqualified from driving for a further two years.[15]
[15] Ibid, pages 58 to 59.
Between 2010 and 2011, the Applicant committed three further traffic infringements including failing to wear a helmet while riding a bicycle, speeding and ‘use/permit use/park vehicle if equipment does not comply with the vehicle standards’. He was sentenced to fines for these infringements.
The Applicant obtained work as a carpenter in late 2007. In 2011, he completed a carpentry apprenticeship and he started his own carpentry business. He was self-employed in that business until he was incarcerated in 2016.[16]
[16] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, page 3.
Between April 2013 and December 2015, the Applicant committed a number of traffic infringements including:
· “Start/drive a vehicle in a way that makes unnecessary noise/smoke”;
·“Exceed speed limit in speed zone by at least 13km/h not more than 20km/h” ;
·“Fail to drive within marked lane on multi-lane road – bicycle”;
·“Fail to signal intention to change direction”;
·“Exceed speed limit by less than 13km/h”;
·“Drive/park/ or permit person to drive/park a defective light vehicle”;
·“Fail to stop at red traffic light”;
·“Overtake when not safe to do so”; and
·“Exceed speed limit by at least 13km/h but more than 20km/h”
The Applicant was sentenced to fines for each of these offences.
Drug offences and further traffic offences
During 2014 and 2015 the Applicant committed multiple drug-related offences.[17] On 31 October 2014 police searched his vehicle and found two clear straws and eight clip seal bags containing a total of 3.11 grams of amphetamine. On 17 December 2014 police searched his vehicle and found 10 diazepam tablets. On 19 February 2015, police searched the Applicant’s home and vehicle and found various small quantities of cannabis, temazepam, oxycontin and diazepam. They also found drug related paraphernalia including a plastic bottle with a hose and cone piece attached and a glass smoking pipe. On 18 July 2015 the Applicant was found in possession of dangerous drugs and property suspected of having been used in connection with the commission of a drug offence.[18]
[17] Exhibit G1, Section 501 G-Documents, G2, pages 49 to 50.
[18] Exhibit R1, Respondent’s Summonsed Material, pages 7 to 27.
On 17 November 2015, the Applicant was sentenced to six months of probation for the following offences in relation to the October 2014 and February 2015 searches:
·Possessing dangerous drugs x 6 (amphetamine, diazepam, oxycontin, temazepam and cannabis);
·Possess utensils or pipes etc for use;
·Possess utensils or pipes etc that had been used; and
·Possess property suspected of having been used in connection with the commission of a drug offence.
In the same sentencing episode, he was found guilty of ‘Unlawful possession of restricted drugs’ (Diazepam) relating to the December 2014 search and not further punished.[19]
[19] Exhibit G1, Section 501 G-Documents, G2, page 50.
On 27 November 2015, while on probation, the Applicant was found in possession of a glass pipe that had been used in connection with the smoking of a dangerous drug and he was also found in possession of a telescopic baton. On 11 January 2016, the Applicant was found in possession of a glass pipe.[20] On 1 April 2016 the Applicant was fined $900 for unlawfully possessing weapons and possessing utensils or pipes that had been used.[21]
[20] Exhibit R1, Respondent’s Summonsed Material, page 46.
[21] Exhibit G1, Section 501 G-Documents, G2, page 50.
On 21 January 2016, the Applicant's drivers’ licence was suspended for three months following the accumulation of demerit points.[22]
[22] Ibid, page, page 57
Between November 2015 and August 2016, the Applicant committed the offence of ‘Drive while relevant drug is present’ on four occasions and was sentenced to fines and cumulative license disqualifications totalling 18 months.
On 23 April 2016 police conducted a search of the Applicant’s vehicle and found four x 5mg tablets of Oxycodone. The Applicant stated he had been given the Oxycodone from a friend to help with the pain from a toothache that he had been suffering.[23] He was found guilty of possessing dangerous drugs and was fined $300 with no conviction recorded.
[23] Exhibit R1, Respondent’s Summonsed Material, page 49.
The Applicant continued to commit driving and drug related offences. Of particular note are two offences that he committed on 14 July 2016 and 21 September 2016, respectively, for which he was sentenced on 7 August 2018.
On 14 July 2016, police searched the Applicant’s vehicle and found, concealed in the vehicle, a clipseal bag containing 5.18 grams of methamphetamine and $950 in $50 notes.[24] He was charged and released on bail.
[24] Exhibit R1, Respondent’s Summonsed Material, page 75.
On 21 September 2016, while the Applicant was on bail, the police executed a search warrant at the Applicant’s home and found:
·$41,455 in Australian currency;
·a clip seal bag containing approximately 16 grams of methamphetamine;
·six mobile phones;
·two Cryovac machines; and
·some drug paraphernalia including a glass pipe.[25]
[25] Ibid, pages 87 to 102.
While on bail, the Applicant breached his bail conditions on five occasions.[26] and he was found in possession of a pipe connected to drug use and was caught drug driving.[27]
[26] Exhibit G1, Section 501 G-Documents, G2, page 49.
[27] Ibid, page 56.
On 7 August 2018, the Applicant was convicted and sentenced for two offences of ‘possessing dangerous drugs exceeding schedule three but less than schedule four’ arising from the searches on 14 July 2016 and 21 September 2016. For the 14 July 2016 offence, he was sentenced to three years imprisonment, and for the 21 September 2016 offence he was sentenced to two years and six months imprisonment to be served concurrently. He was released on parole immediately.[28]
[28] Ibid, 49.
The remarks of the learned sentencing Judge included the following:
“You have a criminal history including a history for drugs. Your first entry on your history concerns your convictions, none of which were recorded, in the Magistrates Court at Redcliffe on 17 November 2015 with respect to your possession of four different types of drugs including methylamphetamine. You were placed on probation for six months and within 10 days you had breached it. You were dealt with for those offences as well as another offence in the Magistrates Court at Pine
Rivers on 1 April 2016, and you received a fine. Also relevant for consideration is
that on 8 August 2017, you were placed on probation for 18 months with respect to
an offence of driving whilst a relevant drug was present in your blood or saliva.
The report from probation and parole…is not a very flattering one so far as you are concerned. At least as at 18 May 2018, the view of the report writer was that your response to community-based supervision was unsatisfactory and that you had committed a number of further offences, and had failed to attend interventions to address your substance use and gambling. Also, it was noted that you had a consistent history of re-offending behaviour, and for those reasons you are not considered suitable for further community-based orders. What I found concerning about the report is that although you commenced the Life Back program, you indicated no intention or willingness to change, continuing to blame others for your own actions, offending behaviour and substance abuse. How you could possibly find some logical basis to blame anyone for your abuse of methylamphetamine is quite beyond me. It is about time, at your age, you stood up like a man and accepted responsibility for whatever problems you might have.
...These offences were detected after the execution of search warrants on 14 July 2016, and then again on 21 September 2016. On 14 July, you came to the attention of police who were patrolling the roads in the Narangba area. Apart from you telling lies to the police about money found in a compartment beside your steering wheel, hidden in a compartment between the centre console and the driver’s side foot well was a quantity of methylamphetamine together with $950 in cash. Later analysis revealed that there was 3.56 grams of pure methylamphetamine within 5.131 grams of substance.
You participated in an interview with the police but you told them lies. The Crown alleges, and I have already accepted, that your possession of methylamphetamine on that occasion was for a commercial purpose. I accept the submission of your counsel that part of the methylamphetamine in your possession must have been for your own use, but the majority of it was destined, had it not been intercepted, for commercial distribution.
The same observations and findings may be made in relation to the methylamphetamine located by police on the execution of a search warrant a little over two months later. On this occasion, a warrant was executed at your residence. A whole range of drug paraphernalia and equipment was located by police, as well as 10.537 grams of methylamphetamine in 13.818 grams of substance, and over $41,000 in cash. I understand that part of this sum of money is asserted by you to have been obtained in a legitimate way, but whatever the true position is, the methylamphetamine found in your possession on that day, or at least the majority of it, was, like the first amount detected in July 2016, destined for commercial distribution with the balance intended for your own personal use.
It is very concerning to the court that, again, the methylamphetamine, currency and a number of the other items, were concealed in compartments, one of which was in a workbench area in the garage and could only be unlocked using a remote control. You took steps, and I think sophisticated steps, to hide your drugs and money, Mr Moody.
It is a serious aggravating feature of this matter that the second of the two offences to which you have pleaded guilty was committed whilst on bail for the first offence.
I accept that at the time of these offences you were drug dependent and that you were dependent on, in particular, the drug methylamphetamine. I accept also that you have had problems over the years with relationships and other issues that are discussed in some detail in the report of Ms Ferrari. It may well be, as Ms Ferrari suggests, that you have an underlying psychological issue or issues requiring ongoing treatment. But, whatever your issues are none of it excuses your use of methylamphetamine and certainly none of it could ever excuse possessing it for a commercial purpose.
You have at least taken some steps towards your own rehabilitation. Whether those steps were taken at the direction of the authorities or whether it was thought to be a good thing to secure bail, or whether quite independently of those considerations, the family who support you and are here present today to do so, urged you to accept treatment, the fact of the matter is you did undertake a six month residential program with Breaking Through which was completed in April 2017. You have also, I note, completed the Lives Lived Well program, six days, one day a week for six weeks, as well as five sessions with OGI Potential, another firm of psychologists.
You have a good work history, and it commences in England and extends here in Australia. You are in employment now, working as a permanent casual with an automotive repair business, and you are in a relationship with a woman, who is present at court to support you, that has been ongoing for the last 12 months. You are very lucky to have her support, particularly in circumstances where you continue to abuse methylamphetamine.
Mr Moody, you strike me as a man who is prone to blame others for your own weaknesses. You have demonstrated that through the history you provided to Ms
Ferrari and perhaps in the attitude you initially displayed to probation and parole.
You are a drug addict. Nothing more and nothing less. But you are a dangerous drug addict because you have demonstrated yourself capable of acquiring large sums of methylamphetamine for distribution to others. So your own tale of woe about the effect on your life of methylamphetamine should, in your mind at least from now, be supplemented by the knowledge that what you were at least intending to do by the distribution of those drugs is to inflict the same level of misery on other users of the drug as you have inflicted on your own family and your partner.
Your counsel has urged me to order your immediate release on parole, and he has said everything that can be said on your behalf. The alternative is to require you to serve a substantial period of the head sentence I am about to impose, and so I have given anxious consideration, during the course of argument, as to which course I should take in your case. We know that six months of residential drug rehabilitation has not worked for you, and that a short period of custody that you have served also has not worked, and so logically one might think that a longer period of custody might drive the message home to you. But as I say, after anxious consideration, I am hoping that my words to you today have an effect, and if they do, then I am prepared to give you one last chance, and that is to admit you to parole today, but for a long period, and that is three years…”[29]
[29] Exhibit G1, Section 501 G-Documents, G2, pages 72 to 76.

In relation to the July 2016 offence, the Applicant told the Tribunal that he had not been aware of the drugs that were concealed inside the passenger footwell of his car, he had not put them there, and that other people used his car. When asked if they were for a commercial purpose, he said no, they were for personal use. When asked how he knew the drugs were for personal use if he did not put them there and they were not his, he said, rather unconvincingly:
“…like I use meth, so I know what the – like my intentions would have been to it if like, they pretty well made, like I had to plead guilty to it because it was found in my car on the driver's side or whatever, so like I pled guilty to it because there was – like yes. So ‑ - - [30]
[30] Transcript, page 22, line 45 to page 22, line 5.
The Applicant admitted that the drugs and the $41,000 in cash found at his home in September 2016 were his, but he denied that the methamphetamine was for a commercial purpose. He said the cash was money he had put aside from doing like “a few cash jobs” for his wedding and honeymoon “and stuff like that” and he had a compartment in his work bench where he used to store money. [31] It seems implausible that a few cash jobs would yield that amount of money, or that the Applicant would have kept his wedding and honeymoon fund at home in cash rather than in a bank account if the money was legitimate. The fact that a large quantity of drugs was found at the same time is more suggestive of drug dealing than another kind or illicit activity such as tax evasion.
[31] Transcript, page 22.
There is a report by Dr Valappil, psychiatrist, before me which states that the Applicant claimed that he often bought drugs in large quantities due to fear of running out, and that he had used money from his savings and sold belongings to support his drug habit. He said his friends pooled their money to buy drugs in large quantities.[32] This does not sit comfortably with the Applicant having $41,000 in cash set aside for a wedding and honeymoon.
[32] Exhibit A11, Psychiatric Report of Dr Valappil dated 19 October 2020.
The transcript of the sentencing proceedings on 7 August 2018,[33] include a reference to the Applicant claiming ownership of two mobile phones that contained messages indicating that he was owed money by a number of people and he was trying to collect that money in order to pay back his supplier. When asked to explain that evidence, the Applicant said “I believe that I got - I can't without seeing them - but I believe that that would have been for previous, like, jobs I had done…carpentry work”.[34] I find it implausible that a tradesman would use text messages to remind customers to pay invoices. Further, what followed in those sentencing proceedings was this:
CROWN: The Crown alleges that both possessions were for a commercial
purpose, for these reasons - - -
HIS HONOUR: Well, that’s accepted, isn’t it, Mr Buckland?
MR BUCKLAND: Yes, your Honour.[35]
[33] Exhibit G1, Section 501 G-Documents, G2, page 84.
[34] Transcript, page 23, lines 1 to 10.
[35] Exhibit G1, Section 501 G-Documents, G2, page 84.
The Applicant did not allege that his lawyer had acted without instructions in those proceedings.
The Applicant’s denial that there was a commercial purpose on each occasion is contrary to the factual findings made by the learned sentencing Judge. In HZCP v Minister for Immigration and Border Protection[36] (“HZCP”) the Full Federal Court considered whether a Tribunal may make a finding of fact that is contrary to a finding made by a criminal court. The court considered this issue in the context of a decision by the Minister not to revoke a mandatory visa cancellation. Their Honours were unanimous in their view that where a Tribunal is invited to make a finding that is contrary to a finding that was made by a court in a criminal matter, a heavy onus of proof applies and the Tribunal should exercise extreme caution in making any contrary finding.[37] It will become relevant later in this decision that the majority[38] further held that where the factual finding underpins a conviction or sentence that grounds the decision-maker’s jurisdiction, the Tribunal is not permitted to make a contrary finding of fact. The conviction and sentence in HZCP did ground the decision-maker’s jurisdiction, because they triggered the mandatory cancellation of the Applicant’s visa under s501(3A) of the Act, leading to the Applicant making representations under s 501CA(3)(b) of the Act thus enlivening the minister’s power under s 501CA of the Act to make the decision under review.
[36] [2019] FCAFC 202.
[37] See paragraph 69 where McKerracher J cited with approval a passage by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313 at paragraph 43(b); per Derrington J at paragraph 150; per Colvin J at paragraph 180.
[38] McKerracher and Colvin JJ.
The sentences imposed on the Applicant in 2018 could have, but as it happens did not, ground the decision-maker’s jurisdiction in this matter so I am permitted to make a finding of fact that is contrary to the findings of the learned sentencing Judge. However, I am not prepared to do so on the basis of the evidence given by the Applicant which contains too many implausible aspects to be convincing. I am satisfied that on 14 July and 21 September 2016 the Applicant possessed methamphetamine, and that at least some of it was intended to be supplied to others in the community.
The Applicant was in court when the learned sentencing Judge passed sentence. His Honour spoke to the Applicant and the Applicant responded. His Honour told the Applicant the following:
“I order that you be released on parole today under these conditions. For the next three years, you will be under the supervision of the Chief Executive. You are to carry out his lawful instructions. You are to give a test sample if required to do so by the Chief Executive. You are to report and receive visits as directed by the Chief Executive. You are to notify the Chief Executive within 48 hours of any change in your address or employment during the parole period, that is the next three years. You are not to commit an offence. Furthermore, there will be a special condition that you are to submit to such medical, psychological or psychiatric treatment as you may be directed to submit to by the Chief Executive, and lastly, you must report to the probation and parole office at Brisbane by 5pm today to obtain a copy of your court ordered parole order. Should you fail to do that, that is, report by 5pm today to obtain a copy of the order, you will be in breach of parole, liable to be arrested, and you will be taken to prison. Do you understand all of those conditions?”[39]
The Applicant answered “Yes”. His Honour added:
“They will apply to you for the next three years. So if you put a foot wrong, you will be going to prison.”[40]
[39] Exhibit G1, Section 501 G-Documents, G2, 75 to 76.
[40] Ibid, page 76.
A mere four days later, on 11 August 2018, the Applicant was caught in possession of a glass pipe, three clip seal bags containing a total of 50.78 grams of methylamphetamine, several empty clip seal bags, and a total of $14,250 in Australian currency. He was remanded in custody.[41]
[41] Exhibit R1, Respondent’s Summonsed Material, page 309.
On 19 August 2019, he was convicted of the following offences relating to the money:
·“Possession of property suspected of being the proceeds of an offence under drugs misuse act”, for which he was sentenced to six months imprisonment; and
·“Possession of property suspected of having been used in connection with the commission of a drug offence” for which he was not further punished.[42]
[42] Exhibit G1, Section 501 G-Documents, G2, page 48.
On 21 August 2019, in relation to the methamphetamine, he was convicted of ‘possessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4’ and sentenced to four years imprisonment with a parole eligibility date of 20 March 2020, having already spent 12 months in custody.[43]
[43] Ibid, page 47.
In passing sentence, the learned sentencing Judge made the following remarks:
“You know through your own experience of the dangerousness of these particular drugs. You know that they are highly addictive. You know that they have a very distorting effect on a person’s life, on decision-making, on self-control, on the exercise of moral judgement, and on actions. And you should know that the damage they do is not just to the person who uses the drugs, but they do particular harm to others who care about that person and most importantly, to people who depend upon that person for their own care and support.
… On 11 August 2018, you were intercepted by police riding a motorcycle on the Bruce Highway near Morayfield at about 8 pm. You admitted to the police that you were in possession of a glass pipe that had been used to smoke methylamphetamine.
The police searched you and found the pipe, as well as about $1250 in cash in your jacket. They then searched your backpack and found a further $13,000 in cash and some unused clip seal plastic bags. On further searching, they found concealed in the lining of your helmet a small black case that held three clip seal bags, containing a crystalline substance…
…The Crown alleges that the methylamphetamine was in your possession for a commercial purpose. They make this submission based on the very large quantity of drugs packed into saleable weights of approximately a quarter ounce, half an ounce, and a single ounce. The presence of the unused clip seal bags and the presence of a significant sum of cash. That understanding of the purpose for which you were in possession of the drugs is not disputed.
Your offending is certainly aggravated by the commercial quantity of the dangerous drug in your possession. It is also seriously aggravated by the fact that at the time you were found to be in possession, you had very recently been released on parole for earlier offending within a matter of about four days. That conduct by a person of your age and experience indicates a very serious disregard for the law. And it’s a very disturbing aspect of your conduct.
… I also note, from the material that’s been tendered on your behalf, that it is likely that at the time of your offending, you were a drug dependent person as the result of some serious personal misfortune that has befallen you in the years leading up to your offending. That provides some explanation for your offending, but of course, it’s no excuse for your conduct.
… As your counsel noted, the challenges of making a life drug-free outside of the correctional service system are very different from those inside the system. And you’ll need to work your way towards that in the time that you have remaining in custody.
… I know that it was said to you by his honour Justice Burns, last time you were before this court for sentencing, that you were being given a chance to put your life back together and that it may, in fact, be a very important chance. It’s very clear that that chance was completely wasted by you.”[44]
[Underlining added]
[44] Exhibit R1, Respondent’s Summonsed Material, pages 332 to 336.
The Applicant told the Tribunal the drugs were not intended for supply to others.[45] However his evidence is undermined by the matters I have underlined in the sentencing remarks quoted above. In any event, this conviction and sentence did enliven the decision-maker’s jurisdiction so, following the ratio in HZCP, I must find in accordance with the sentencing court. That is, I find that at least some of the methamphetamine was intended for supply to others in the community. As the Applicant was also convicted of being in possession of “property suspected of being the proceeds of an offence under drugs misuse act”, I am satisfied that the Applicant had supplied methamphetamine to others in the community for financial gain.
[45] Transcript, page 25, line 45 to page 26, line 6.
Looking at all three offending episodes, the evidence tends to indicate that the Applicant supplied drugs for financial gain to feed his own addiction but not only for that purpose. The large sums of money found in his possession on each occasion are indicative of profit.
The Applicant was under an obligation to give truthful evidence in these proceedings as all those who give evidence in this Tribunal are. The fact that he told the Tribunal that his possession of methamphetamine in 2016 and 2018 did not have a commercial purpose, when I accept it in fact did, indicates a continuing disregard for the legal apparatus that governs the community that he seeks to re-renter.
I have not mentioned all of the Applicant’s criminal history in these reasons. His criminal history contains some 37 offences and 11 sentencing episodes. The vast majority of his offenses arise from his possession of drugs or drug related paraphernalia, but they also include breaches of bail, receiving tainted property and unlawful possession of weapons.
The Applicant’s traffic history contains some 29 offences although I accept that one of those was committed by someone else after the Applicant’s vehicle was stolen[46] so he was not responsible for that. The traffic infringements include:
·exceeding the speed limit by 20km/ph (in September 2007);
·exceeding the speed limit by 30km/ph or more (on 22 March 2008), and exceeding the speed limit by 20km/ph (on 24 March 2008), resulting in his license being suspended);
·unlicensed driving and disqualified driving (in 2008); and
·drug driving x 4 (in 2015 to 2018).
[46] Transcript, page 25.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant has not committed any offences of a violent or sexual nature or any offences directly against women or children. There is no evidence that he has offended against any government representatives or vulnerable individuals although of course persons who are in the grip of a methamphetamine addiction are, by virtue of that addiction, vulnerable to methamphetamine and it is easily conceivable that some of the Applicant’s customers could well have been addicted.
The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing Court. The Applicant was given the benefit of non-custodial sentences on the first seven occasions he was dealt with by a court. Those sentences included probation and community service, both of which he breached by committing further offences. The sentences imposed for the two serious drug offences in 2016 were three years and two and a half years, respectively. These are substantial sentences and the learned sentencing Judge was clear in his remarks that he considered the offending, and the circumstances of the offending, to be serious. For the 2018 offending, an even longer sentence of four years imprisonment was imposed with 17 months to serve in custody before being eligible for parole.
The Applicant’s offending is certainly frequent. He commenced offending in late 2014 and in the following four years, he committed some 37 offences. His traffic offending is also frequent, having commenced in 2007 and comprising some 28 infringements. There is a very sharp trend in increasing seriousness with offences arising from his supply of methamphetamine having been committed in 2016 and 2018. I would not characterise his traffic offending as having followed a trajectory of increasing seriousness despite the drug driving offences between 2015 and 2017, because there are some rather reckless speeding offences earlier in 2007 and 2008, followed by instances of driving after his license had been suspended because of those speeding offences.
In a letter to the Tribunal dated 13 October 2020, the Applicant referred to the speeding offences and said:
“Cars and motorbikes, racing is in my blood so being younger and keen to get behind the wheel I didn’t always wait for the best and responsible opportunities, I have served disqualification periods as punishment for my reckless driving behaviour and thoughtless actions that endanger other road users, I look back and consider myself lucky for being stopped by the police and pulled up before anything that had the potential to impact someone else negatively could of (sic) happened.”[47]
[47] Exhibit A10, Statement of the Applicant dated 13 October 2020.
There were some further speeding offences, albeit not as serious, in 2015.
The cumulative effect of the Applicant’s traffic offending is that he has, on many occasions, unlawfully posed an increased risk to the safety of other road users and pedestrians. The cumulative effect of his supply of methamphetamine is that he has circulated an addictive and damaging drug within the Australian community. It is well known that the trade in illicit drugs is associated with property crime, social harm, harm to families, and harm to individual drug users.

I do not consider factors (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
Overall, the application of sub-paragraphs of paragraph 13.1.1(1) of the Direction weighs heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
Should the Applicant again engage in the supply of methamphetamine, the nature of harm to the community includes addiction, poor health, property crimes or crimes of violence committed against innocent members of the community, and misery caused to the families and loved ones of addicts. Further, the circulation of illicit drugs in the community puts a significant burden on the health and criminal justice systems.
The Applicant’s traffic offences include serious speeding offences and drug driving offences. Such behaviour puts other road users and pedestrians at an increased risk of injury or death. I am cognisant that the Applicant’s previous driving offences have not, on the evidence before the Tribunal, resulted in harm to any person. However, the risk of harm from this sort of behaviour is nonetheless real and substantial.
Overall, the harm from further offending includes very significant and, quite conceivably, catastrophic harm to members of the Australian community.
Likelihood of engaging in further criminal or other serious conduct
While the Applicant’s traffic history shows a general and consistent disregard for the road rules, the vast majority of his offending is drug related and I am satisfied that it arises from the Applicant’s addiction to methamphetamine.
The Applicant said he began using methamphetamine in 2015. His criminal history includes possession of other drugs and drug related paraphernalia prior to that. He said his step-brother who lived in the United Kingdom (the son of the woman his father married) committed suicide in 2011. He was very close to his step-brother, having spent weekends with him until the age of around 16. In 2015, during a holiday in the United Kingdom he visited his step-brother’s grave which triggered him going “off the rails”. He used drugs to cope.[48]
[48] Transcript, page 18, lines 27 to 45; G2, page 269.
The Applicant also said that an ex-partner had come to Australia, they got back together, got engaged and then decided she would apply for a partner visa. This required her to leave Australia for 12 months, and during that time he “fell into the wrong crowd and started using ice”. He became “very reliant on it immediately and found myself to not be able to stop”.[49]
[49] Transcript, page 12, lines 14 to 30.
The Applicant’s mother suspected “something wasn’t right” because the Applicant was becoming distant and then police were knocking on the door and fines were arriving in the mail, then the Applicant was going to court.[50] It seems that despite the family being close, the Applicant’s mother was slow to realise he was addicted to drugs. Similarly, the Applicant’s half-sister gave evidence that the Applicant spent time with her baby daughter and that, in her words:
“I know that he would never have done [methamphetamine] around her, that’s not him and he would never have come over if he was on it. There’s no way he would put my kids in danger.”[51]
[50] Transcript, page 49, lines 26 to 31.
[51] Transcript, page 64, lines 37 to 46.
Yet the Applicant was using methamphetamine daily since his half-sister’s daughter was born.
Shortly after the Applicant’s fiancée returned to Australia in 2016, he was arrested and remanded for around two months. He was granted bail so he could get married in November 2016. His bail required him to do a rehabilitation course. The Applicant stated that drugs were available at this facility for the duration of his stay there however he initially remained clean. For the first three months, the Applicant had to stay at the centre. He was then permitted to take day leave in order to work, which he did. After around two months of that, he discovered that his fiancée had moved out of their home and terminated the lease, taken all the items of value and his dog, and moved back to the United Kingdom. This caused him to relapse in early 2017. In his words, “being in the isolated environment of rehab there was a lot of users and that in there and I began to use again”.[52]
[52] Exhibit G1, Section 501 G-Documents, G2, pages 269 to 270; Transcript, page 13, lines 33 to 40.
A friend, Mr Wilson, who has known the Applicant for around four years said he knew the Applicant was using drugs and that he wanted to stop.[53]
[53] Transcript, pages 38 and 39.
The Applicant met his current partner, Jodie, after his fiancée left and while he was still at the rehabilitation facility. She very quickly realised he was using drugs and was addicted.[54] The Applicant was open with her about his drug use. Jodie told the Tribunal that she did not want to be directly involved in his drug use so if drugs were being used around her, she would leave the room or go outside.[55] When asked if she was aware that the Applicant was using drugs in the four days in August 2018 between being sentenced and released on parole and being caught in possession of drugs, she said:
“Yes, I would expect so. I hadn’t seen him be able to, like, actively seek help and be able to have time where he wasn’t using so I would (indistinct) expect that to be true.”[56]
[54] Transcript, page 70, lines 5 to 10.
[55] Transcript, page 74, lines 11 to 19.
[56] Transcript, page 75, lines 20 to 25.
The Applicant said that he used methamphetamine for the entire duration of his relationship with Jodie prior to being incarcerated.[57]
[57] Transcript, page 29, lines 23 to 24.
It was not disputed that the Applicant’s non-traffic offending arose from his addiction to methamphetamine. Some that offending was very serious. It is apparent that when the Applicant is in the grip of a drug addiction he is prepared to drive while under the influence of methamphetamine and supply methamphetamine to others in the community for financial gain. When asked why he drove with methamphetamine in his system, he said “Just my inability to make rational decisions, I guess”.[58] There is a lack of moral compass evident in the Applicant’s drug-related offending.
[58] Transcript, page 34, lines 30 to 40.
Prior to the August 2018 offending, the Applicant had not only engaged in a six-month residential program, he had completed a Lives Lived Well program (for one day per week for six weeks) and five sessions with a psychologist service. For some months in the residential rehabilitation program he had stayed off drugs despite them being freely available, before relapsing because of the breakdown of his relationship and the circumstances around that. Dr Valappil opined that when the Applicant experienced grief and loss over the death of his step-brother and the break-up of his relationship with his fiancée, he self-medicated with methamphetamine to deal with what was probably a normal response to life events.[59] This is consistent with the opinion of Carla Ferrari, psychologist, who provided a report to the court for the purpose of sentencing the Applicant for the 2018 sentencing proceedings. She opined that the Applicant self-medicated with illicit substances during times of heightened emotional stress.[60]
[59] Exhibit A11, page 10.
[60] Exhibit G1, Section 501 G-documents, G2, page 290.
The Applicant has engaged in drug rehabilitation courses since his most recent offending and he has made a relapse prevention plan. He has also made a plan for his re-integration into the wider community,[61] which he has shared with his partner and family. They wish to support him.
[61] Exhibit A2, 12 month plan document lodged 25 September 2020.
In his letter to the Tribunal he relevantly said:
“Whilst I was incarcerated, I had a lot of time to think about what I had done and how it has impacted my family. I feel guilty, ashamed and embarrassed for the pain and suffering I have caused them…I do feel I needed to go to jail to get me away from ice so I could then see clearly again and take time to understand just how much my actions were affecting other people…The whole time I could not see clearly and see the hurt that I was causing my family. I am so disappointed and embarrassed by the way I acted.
…I have been doing a class about different ways of thinking and preventing negative thoughts and behaviours…I have contacts including Amanda from Lives Lived Well and a psychologist I am comfortable with at OGI potential, to support me to develop and implement a risk management plan that will keep me on track and help to maintain a responsible frame of mind.
…I have disregarded the law and breached conditions before but I have served my time and paid the price by spending years in jail, the difference now is that I am clean, and I am determined to stay that way. Without using ice everyday it’s a different lifestyle, commitments and time frames have meaning and the impact the drug has when making decisions, it takes away your ability to weigh up the consequences and realise the risks of your actions, my substance dependence impaired my decision making.…Now I have sobered up I am so ashamed and embarrassed with my actions and its mind blowing. Its devastating that it took my incarceration to release that i may lose the opportunity of being a close part of my family…the last two years has taught me a lot and give me a lot of time to think about my actions. I will carry the shame every day of peoples lives that I have affected.” [62]
[Errors in original, underlining added]
[62] Exhibit A10, Statement of the Applicant dated 13 October 2020.
The Applicant’s evidence in the hearing was consistent with this. Two aspects of the Applicant’s current attitude that strike me as concerning are his remorse is almost entirely focused on the impact his offending had on himself and his family and (2) his assertion that the “difference now” is that he is clean and determined to stay that way. whereas in 2016/2017 there was a period when he was clean for several months and that did not stop him from relapsing in response to emotional trauma. The Applicant’s denial that he possessed methamphetamine with a commercial purpose and his focus on the impact of his offending on himself and his family shows a lack of insight into his offending.
The Applicant will be subject to parole with conditions and supervision aimed at assisting his rehabilitation until March 2023. However, being on parole did not stop him from re-offending last time. Further, I am not convinced that his offending while on parole can be fully explained by the Applicant’s drug addiction. The Applicant did not merely consume methamphetamine four days into his parole period, he continued to engage in the supply of it at least partly for financial gain.
The Applicant claimed that he has not used drugs while incarcerated. While suboxone (a prescription medication) was found in his work area in prison, there was no direct evidence linking him (as opposed to another prisoner) to it. I am prepared to accept that the Applicant has not used illicit substances since his incarceration in August 2018. Dr Valappil reported that the Applicant considered that being incarcerated had helped him gain a different perspective and that he was remorseful for his offending. Dr Valappil opined that:
“More than two years abstinence from drug use during incarceration, engagement in regular work during his incarceration, not suffering from any major mental illness and family support can be considered as positive indicators of the likelihood of Mr Moody remaining abstinent from drugs in the future.”[63]
[63] Exhibit A11, Psychiatric Report of Dr Valappil dated 19 October 2020.
I agree that these are positive indicators of a likelihood that the Applicant will remain abstinent from drugs in the future. However, some of those indicators were present when the Applicant was offending, namely family support and regular work, and a shorter period of abstinence. His family and his partner were ineffective in their efforts to help the Applicant. They now say they will help the Applicant stay away from drugs. Indeed, based on the numerous letters of support and the evidence given at the hearing, it is apparent that there are a number of people in the community who are prepared to support the Applicant in his rehabilitation[64] including two people who are willing to offer him employment.[65] I am satisfied that should the Applicant be returned to the wider community, he will be surrounded by people who wish to help him abstain from drugs and crime. How successfully they could do that seems to be very much dependent on the Applicant.
[64] Exhibit G1, Section 501 G-documents, G2, pages 408 to 414.
[65] Ibid, page 415 and Exhibit A9.
The Applicant’s mother, partner and his half-sister said the Applicant is now happy, positive and looking forward to his future. They expressed optimism that he would stay away from illicit drugs with appropriate rehabilitative support and with their support. The Applicant is acutely aware that if he gets his visa back any further offending will likely result in his deportation.
I accept that the Applicant has been clean for over two years, that he is thinking clearly, that he regrets the consequences of his offending, that he intends to stay away from drugs, that his family and partner are supportive, and that he appreciates the consequences of further offending. However, I am troubled by his lack of insight into his offending and his attempts to mislead the Tribunal, the disregard he showed for the law prior to his drug addiction, his tendency to use methamphetamine at times of emotional trauma, the fact that he appears to have outstanding treatment needs in that regard, and his imperviousness to intervention from the justice system when he is using methamphetamine.
To my mind, there remains a very real risk that the Applicant will relapse and consequently re-offend in the way he previously has including drug driving and supplying methamphetamine.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
·     whether there are other persons who already fulfil a parental role in relation to the child; and
·     any known views of the child.
The Applicant does not have any biological children. He claimed five nieces and nephews born between 2008 and 2020 and a god-daughter born in 2008 as children whose best interests would be affected by the decision.[66] There is some evidence before me, including evidence from the Applicant’s half-sister, that that the Applicant has a positive relationship with her three year old daughter (“Child A”) and has not yet been able to stablish a bond with her six month old son (“Child B”). The Applicant’s relationship with Child A has been limited to visits when she was a baby prior to August 2018, some visits while he was in prison and video calls since the pandemic. The Applicant has been incarcerated for all of Child B’s life. I do not accept that he has any kind of meaningful relationship with, or significance to, Child B. Given the Applicant’s evidence that he was using methamphetamine daily since early 2017, he must have been under the influence of methamphetamine when he spent time with Child A which was irresponsible and cannot have been in her best interests. The Applicant’s half-sister is no longer with the father of her children and he has no involvement with them. However, her parents and sister help her care for them. She would like the Applicant to be closely involved in her children’s lives.
[66] Exhibit G1, Section 501 G-documents, G2, page 240.
There is no evidence before me about the Applicant’s relationship with his god-daughter or the other three children who appear to be the children of a cousin. The person the Applicant listed as the father of those three children provided a letter of support for the Applicant but made no mention of the Applicant’s relationship with his children.[67] I am not satisfied that the Applicant has a meaningful relationship with any of these children or that they want or need the Applicant in their lives.
[67] Exhibit G1, Section 501 G-documents, G2, page 408.
I am not satisfied that any of these six minor children have ever relied on the Applicant for financial or emotional support or that he has ever fulfilled a parental role in relation to any of them. The extent to which the Applicant could play a positive role in their lives is very much dependent on whether he abstains from drugs and dealing in drugs, which it is by no means certain, and whether the respective parents of the children want him to be involved in their lives. There is no suggestion that any of the children do not have at least one parent fulfilling the parental role. If the Applicant is removed to the United Kingdom, he will be able to communicate with these children using electronic means.

The fact that a person has a positive relationship with a child does not necessarily mean that the impact of the person’s physical removal from the child’s life would be so significant as to affect the child’s best interests. The potential, albeit highly contingent, for the Applicant to play a significant and positive role in the lives of one or more of these children tips this Primary Consideration in favour of revocation but only to a very slight extent.

Conclusion: Primary Consideration B

Primary Consideration B weighs slightly in favour of revocation.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[68]
[68] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states that:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia in August 2007 when he was 19 years old. He is now 32 years old;
·the Applicant commenced a relatively serious traffic infringement (exceed speed limit by 20km/ph or more) one month after arriving in Australia and he was caught speeding excessively (20 and 30km/ph over the limit) seven months after arriving in Australia. He committed his first criminal offence in October 2014;
·the Applicant’s criminal offences are almost entirely drug related and include serious offences arising from his supply of methamphetamines. He has also committed four drug driving offences;
·there is at least a medium risk that he will commit further drug offences including supplying illicit drugs, and that he will continue to commit traffic offences that involve risk to other road users;
·the Applicant’s offending, including offences committed while he was under an obligation to be of good behaviour (probation, community service order, bail, and parole), and his numerous traffic infringements dating back to before he started using drugs, demonstrate a disregard for the laws regulating the community that he seeks to re-enter;
·the Applicant has engaged in drug rehabilitation courses and counselling since his most recent offending;
·the Applicant held gainful employment, thereby contributing to the community and paying taxes, between 2007 and 2016; and
·if he is removed to the United Kingdom, it will cause significant emotional hardship to his partner and his family (addressed below under Other Considerations).
Conclusion: Primary Consideration C
The Applicant has breached the trust of the Australian community. The nature of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia as an adult at the age of 19 and has lived in Australia for 13 years. He commenced speeding on public roads immediately after arriving, and he commenced his drug offending seven years after arriving. He is entitled to very limited weight under paragraph 14.2(1)(a) of the Direction. His history of gainful employment between 2007 and 2016 affords him some weight under paragraph 14.2(1)(a)(ii) of the Direction.
The preponderance of evidence is that the Applicant is part of a close, loving, cohesive family unit. His mother, in a letter of support, said that the family would be “absolutely heartbroken” if the Applicant were to be deported. However, her daughter, Victoria (the Applicant’s older sister) moved back to the United Kingdom and I heard no evidence about that having left the family heartbroken. In this respect I consider that the Applicant’s mother exaggerated the negative impact that the Applicant’s deportation would have on her and her family. However, I am satisfied that the Applicant’s mother, step-father and his half-sisters all feel a great deal of affection and concern for him, and that his permanent removal from Australia would cause them significant emotional hardship. The Applicant has a loyal, loving partner who wishes to resume her relationship with him and start a family. Non-revocation will effectively put an end to her hopes unless she moves with him. She is originally from the United Kingdom but her entire family are in Australia. I find that the Applicant’s deportation is likely to cause her significant emotional hardship.
It is apparent from the letters of support and evidence that was given in the hearing that the Applicant has some positive friendships and work relationships in the community.
The Applicant’s social and familial ties, and the impact on partner and family of removal from Australia, weigh significantly in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs significantly in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·the non-citizen’s age and health;
·whether there are any substantial language or cultural barriers; and
·any social, medical and/or economic support available to that non-citizen in that country.
The Applicant said he did not have anyone in the United Kingdom. His mother said she did not know how he would cope alone in the United Kingdom.[69] The Applicant is a 32 year old man who is able bodied and does not claim to have any medical or psychological conditions. He lived in the United Kingdom until the age of 19, he speaks the language and he knows the culture. He worked as a carpenter between 2007 and 2016, operating his own business for six of those years. There was no suggestion that he could not use his skills and experience to earn a living in the United Kingdom.
[69] Exhibit A3, Affidavit of Heather Goodrum dated 22 September 2020.
I am cognisant that the Applicant said he found it very difficult to find work in the United Kingdom before his family moved to Australia.[70] That was 13 years ago and he did not have a carpentry qualification plus nine years of carpentry experience including experience operating his own business. He said he thought he would find it hard to find work now, especially with the pandemic and many people without a job.[71] However there is no evidence that persons plying a trade are finding it hard to get work in the United Kingdom.
[70] Exhibit A10, Statement of the Applicant dated 13 October 2020.
[71] Ibid.
The Applicant has a sister in the United Kingdom with whom he is very close. She has written a letter of support[72] stating that the Applicant’s life is in Australia. She said, of her relationship with the Applicant:
“Christopher and I have a close relationship and attempt to make contact as often as we can. Previously by telephone, text and face-to-face. However, since he has been incarcerated, we have contact via letter and I send him pictures to keep him up to date with my life, I travel to Australia yearly and have visited him in Arthur Gorrie Correctional Centre and Woodford Correctional Centre.”
[72] Exhibit G1, Section 501 G-documents, G2, pages 392 to 393.
The Applicant does not think his sister could support him as she lives in a one bedroom dwelling and her work is very demanding. However, according to her letter she devotes time to contacting him via a number of means. Given the nature of their relationship, I think it likely that she would at the very least provide emotional and social support.
The Applicant’s biological father also lives in the United Kingdom and he wrote the Applicant a letter of support.[73] However, the Applicant does not feel he can rely on him for support. The Applicant’s mother gave evidence that his father had not been a very involved parent. The fact that the Applicant’s father made an effort to help him in these proceedings speaks to his willingness to support the Applicant at least to some small extent. I am satisfied that he would offer at least some level of support. The Applicant also has an 89 year old grandmother in the United Kingdom who he does not think could help him due to her age, and I accept this. The Applicant will not enjoy the same level of familial support in the United Kingdom as he does here but nor will he be without support. Further, his family in Australia will be able to keep in touch with him via phone and other electronic means as they do now.
[73] Ibid, pages 384 to 385.
It was contended on the Applicant’s behalf that close family support and meaningful employment are important to his rehabilitation. I am not satisfied that the Applicant would be without meaningful employment in the United Kingdom, or that being without his Australian family would be significantly detrimental given the ability to remain in contact with them and the presence of his sister and father in the United Kingdom. Further, the Applicant will have access to medical and psychological care to the same the extent, and in the same manner, as other citizens of the United Kingdom. He will also have access to the same governmental/social support as other United Kingdom citizens.
It is likely that the Applicant’s removal to the United Kingdom will cause some emotional hardship, and he will face the initial challenges of securing accommodation, financial support/income and psychological/rehabilitative support. However, I am not satisfied that these matters would prevent his successful re-settlement in the United Kingdom.
This Other Consideration (e) weighs only very slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs significantly in favour of revocation;
(c)impact on Australian business interests: neutral;
(d)impact on victims: not relevant; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 129 (one hundred and twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

.......................[SGD].................................................
Associate
Dated: 11 November 2020

Date of hearing: 27 and 28 October 2020

Representative for the Applicant:

Solicitors for the Applicant:

Mr Peter Lyons

FC Lawyers

Solicitor for the Respondent:
Mr Tal Aviram

Clayton Utz

ANNEXURE A – EXHIBIT LIST

EXHIBIT

DESCRIPTION OF EVIDENCE

PARTY

DATE OF DOCUMENT

DATE RECEIVED

G1

Section 501 G-Documents (G1 to G13 pages 1-588)

R

-

07 SEP 20

R1

Respondent’s Summonsed Material (SM 1 to SM 5 pages 1 – 814)

R

-

6 OCT 20

R2

Respondent’s Statement of Facts, Issues and Contentions (19 pages), including Annexure A

R

16 OCT 20

16 OCT 20

A1

Applicant’s Statement of Facts, Issues and Contentions (25 pages)

A

-

25 SEP 20

A2

12 Month Plan Document

A

-

25 SEP 20

A3

Affidavit of Heather Goodrum

A

22 SEP 20

25 SEP 20

A4

Affidavit of Danielle Goodrum

A

23 SEP 20

25 SEP 20

A5

Affidavit of Courtney Goodrum

A

23 SEP 20

25 SEP 20

A6

Affidavit of Jodie Nicholson

A

24 SEP 20

25 SEP 20

A7

Affidavit of Kelly Ford

A

23 SEP 20

25 SEP 20

A8

Affidavit of David Wilson

A

21 SEP 20

25 SEP 20

A9

Statement of Nicholas Reid

A

17 SEP 20

21 SEP 20

A10

Statement of Christopher Moody

A

13 OCT 20

22 OCT 20

A11

Psychiatric Report of Dr Valappil

A

9 OCT 20

21 OCT 20

[2020] AATA 4560

11 November 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G13 pages 1-588)	R	-	07 SEP 20
R1	Respondent’s Summonsed Material (SM 1 to SM 5 pages 1 – 814)	R	-	6 OCT 20
R2	Respondent’s Statement of Facts, Issues and Contentions (19 pages), including Annexure A	R	16 OCT 20	16 OCT 20
A1	Applicant’s Statement of Facts, Issues and Contentions (25 pages)	A	-	25 SEP 20
A2	12 Month Plan Document	A	-	25 SEP 20
A3	Affidavit of Heather Goodrum	A	22 SEP 20	25 SEP 20
A4	Affidavit of Danielle Goodrum	A	23 SEP 20	25 SEP 20
A5	Affidavit of Courtney Goodrum	A	23 SEP 20	25 SEP 20
A6	Affidavit of Jodie Nicholson	A	24 SEP 20	25 SEP 20
A7	Affidavit of Kelly Ford	A	23 SEP 20	25 SEP 20
A8	Affidavit of David Wilson	A	21 SEP 20	25 SEP 20
A9	Statement of Nicholas Reid	A	17 SEP 20	21 SEP 20
A10	Statement of Christopher Moody	A	13 OCT 20	22 OCT 20
A11	Psychiatric Report of Dr Valappil	A	9 OCT 20	21 OCT 20