NWXQ and Minister for Home Affairs (Migration)

NWXQ and Minister for Home Affairs (Migration) [2018] AATA 3976 (24 October 2018)
Division:GENERAL DIVISION
File Number(s): 2018/4363
Re:NWXQ *
* The Tribunal has applied a pseudonym as this decision discloses the Applicant’s criminal conduct as a minor.
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:24 October 2018
Place:Sydney

The Tribunal sets aside the reviewable decision and in substitution decides that the mandatory cancellation of the Class TY Subclass 444 Special Category visa under section 501(3A) of the Migration Act 1958 (Cth) be revoked.
.................................[SGD].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
Migration - mandatory visa cancellation – character test – substantial criminal record – whether to exercise discretion to revoke mandatory cancellation decision – protection of the Australian community – best interests of minor children – other considerations – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) s 499, ss 501(3A), (6)(a), (7)(c), s 501CA(4)(b)(ii)
CASES
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction 65 - Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s501CA – cll. 6.3(5) and Part C
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
24 October 2018
THE REVIEWABLE DECISION

The Applicant has requested the review of the decision dated 1 August 2018 not to exercise the discretion in section 501CA(4) to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category visa under section 501(3A).
The mandatory cancellation occurred because the Applicant did not pass the character test as defined in section 501(6)(a) of the Act. He has a substantial criminal record pursuant to section 501(7)(c), that is, he has been sentenced to a term of imprisonment of 12 months or more. On 7 September 2017, the Applicant was sentenced to imprisonment for four years for offences committed on 2 May 2015 (the May 2015 offences). His sentence commenced on 15 June 2015 and concludes on 14 June 2019. His non-parole period was two years and three months, commencing 15 June 2015 and expiring on 14 September 2017.
On 14 September 2017, the Applicant was taken into migration detention in Sydney but was quickly moved to detention in Western Australia where he remained for over a year until he returned to Sydney for the Tribunal hearing.
The issue the Tribunal has to decide is whether it can be satisfied that there is another reason why the mandatory cancellation of the Applicant’s visa should be revoked pursuant to s 501CA(4)(b)(ii).
DIRECTION 65
Direction No. 65 was made by the then Minister under section 499 of the Act. It is entitled Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA. It sets out objectives, general guidance and principles which provide a framework for decision-makers, and directs them how to exercise the discretion to refuse, cancel or revoke visas, including specifying relevant considerations that are to be taken into account. Clause 6.3(5) states that Australia may afford a higher level of tolerance of criminal 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. The Applicant arrived in Australia aged two. He is now 35.
Part C of Direction 65 sets out Primary and Other considerations that the decision-maker must take into account when deciding revocation requests. Primary considerations 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.
Other considerations specified that were raised in this case are international non-refoulement obligations, strength, nature and duration of ties, impact on victims, and extent of impediments if removed.
BACKGROUND
The Applicant was born in New Zealand in August 1983 and arrived in Australia with his parents in February 1986 aged two. He is a citizen of New Zealand. He returned to New Zealand for about three months at the end of 1987 and for about three weeks at the end of 1995.
He has limited capacity to read and write.
The Applicant’s father died when the Applicant was five years old. Thereafter, his mother worked two jobs to provide for her four children and left her younger children in the care of her oldest daughter while she was working. From the evidence of the Applicant and his brother, it is apparent that neither their mother nor their older sister could control the Applicant from at least the age of 15 or 16. The Applicant’s brother said that they grew up on the streets of the inner-Sydney suburb where they lived. The Applicant later moved to Sydney’s western suburbs with his older sister. The Tribunal accepts the observations of the sentencing judge in September 2017, that the Applicant had a disadvantaged background, he had limited supervision or guidance, and was emotionally deprived following his father’s death and his mother’s need to work.
The Applicant was prescribed medication for Attention Deficit Hyperactivity Disorder when he was about seven years old. He ceased taking that medication when he was about 16. He started using marihuana when he was about 13 and commenced using methamphetamine (ice) when he was about 17. He began abusing alcohol in about 2003.
The Applicant has been employed in jobs including packing, forklift driver and steel-fixer, from the age of 16. In July 2018, Mr Watson-Munro, Consultant Forensic Psychologist, interviewed the Applicant by telephone. The Applicant told Mr Watson-Munro that his employment history was affected by his drug use from about 2003.
In 2012 he suffered a serious injury to his lower back which required surgery. He was working as a steel-fixer in Queensland. He has received compensation but has not worked since.
PRIMARY CONSIDERATIONS
Protection of the Australian community – clause 13.1 of Direction 65
The nature and seriousness of the conduct
Attached is a summary of the Applicant’s criminal record. It includes offences in New South Wales and Queensland.
The Applicant committed his first offence in 1998 when he was 14 or 15 years of age. He regularly and frequently committed offences until mid-2008. He resumed offending in 2012. In May 2015 he was incarcerated for the second time. While in prison he was convicted of drug possession and sentenced to one month’s imprisonment. He had been imprisoned in 2003 to 2004. The evidence does not indicate whether he served the full 12 month sentence or was released on parole on that occasion. He received suspended prison sentences in 2005, 2012 and 2014.
In September 2017, the Applicant pleaded guilty to Assault occasioning actual bodily harm in the company of others, and Intentionally choke etc person with recklessness. The offences arose from an incident on 2 May 2015. The May 2015 offences are the Applicant’s most violent and most serious offences.
He was convicted of another violent offence, assault occasioning actual bodily harm, on 31 March 2003 and fined $1500.
The Applicant appeared in the Parramatta Drug Court in June 2008 and February 2010. On the latter occasion, the Applicant was about to graduate from the Drug Court program. The presiding judge congratulated the Applicant “on making a great success” of the program in which he had been engaged for nearly two years and asked him to promise to continue to work on his recovery from drug addiction. His Honour set aside initial suspended sentences of imprisonment and imposed good behaviour bonds, and recorded a conviction with no penalty. The Applicant moved to Queensland about that time.
The Respondent sent a Formal Counselling Letter dated 20 March 2009 which advised the Applicant that his visa could be cancelled if he committed further criminal convictions. The Applicant told the Tribunal that he did not know that he was not an Australian citizen until he was notified of the intention to cancel his visa about the end of July 2017. He claimed that the letter was addressed to a vacant block next door to where he then lived. There was no evidence before the Tribunal that he had received it.
The Applicant committed no offences between mid-2008 and 2012. His drug use had ceased or was reduced during that period. He was convicted of his first drug possession offence in September 2012. He was in a stable relationship for at least two years, which resulted in the births of two of his sons in 2010 and 2012.
In 2012, he suffered the lower back injury at work. He told the Tribunal that he was in pain and taking endone, and increased his drug taking to deal with the pain, beginning with marihuana and progressing to ice. He resumed his criminal conduct, including driving and drug offences. He has not worked since. His relationship with the mother of his two sons broke down in about April 2013. He lived on the streets for a few months.
The Applicant’s mother died in August 2013 after battling cancer for about 18 months. In Mr Watson-Munro’s opinion, the Applicant had suffered a major psychological decompensation following his mother’s illness and death. He recorded that the Applicant’s use of methamphetamine increased and he commenced using heroin at that time. He also abused alcohol.
The Applicant returned to Sydney after his mother’s death and became involved with his partner.
The sentencing judge made the following remarks about the circumstances of the May 2015 offences. The four co-offenders lived in the same premises. The victim was well-known to the offenders, as the former girlfriend of one of the co-offenders, the brother of the Applicant’s partner. The other offender was the brother’s girlfriend. The Applicant’s partner arranged for the victim to visit the premises because she wanted to show the victim a video of her stealing underwear. The victim hid when told that the brother and his girlfriend were coming. The brother approached the victim with a knife in each hand and they walked into the bedroom where the others were waiting. They all watched the video. The victim said that she could not buy clothing for her own child because the brother had not paid her the money he owed her.
She then attempted to leave but the offender (the Applicant) grabbed onto a hood on her jumper and pulled her backwards down the hall. The force caused her to collide with the hallway. She fell to the ground he continued to pull the hood around her neck restricting her breathing. He had no hands on her neck but her breathing was constricted by the pulling of the hood.
Whilst the victim was on the ground, (the brother) repeatedly kicked her to the back and torso area. (All four offenders) punched and kicked the victim while she was on the ground. (The Applicant) continued to tightly pull the jumper around her neck causing her breathing to be restricted to the extent that she lost consciousness. As she was regaining consciousness she heard (the partner and the girlfriend) saying “You’ve killed her”. (The Applicant) said “Put her in the boot and we’ll go to Lithgow, they won’t find her there”.
His Honour then described actions taken by the girlfriend. He continued:
At the same time (the partner, the brother) and (the Applicant) resumed their assaults upon the victim. (The Applicant) kicked her to the face while (the partner) punched her to the head area. (The brother) kicked her back and torso area. The victim was unable to tell the police how long the assault took place or what caused it to stop.
On the day of the trial, all the offenders pleaded guilty to assault occasioning actual bodily harm in company, for which the maximum penalty was seven years imprisonment. The Applicant also pleaded guilty to the choking offence for which the maximum sentence was 10 years.
His Honour found:
·The assault offence was serious, particularly where an element of it was that the parties were in company; the presence of co-offenders increases the threat to, and fear felt by, the victim;
·The victim’s injuries were not at the high end; she was in hospital over-night;
·The extensive violence and period of time over which it was carried out increased the objective seriousness of the offence;
·The offence fell below the mid-range of objective seriousness in relation to all offenders.
His Honour found that the choking offence did not fall within the category of offence normally contemplated where an offender places their hands or a ligature around the victim’s neck with the intent to choke them to unconsciousness or death. He accepted that the Applicant had little recollection of the offence “due to his drug inebriation and may not have intended to render her unconscious, he was certainly reckless …”. His drug inebriation did not impact on the objective seriousness of the offence. His Honour found that the offence was serious but fell “just below the low end of the mid-range of objective seriousness”.
His Honour found that there was no evidence of remorse apart from the guilty plea and none of the offenders had any degree of empathy for the victim. The Applicant was on a 12 month suspended sentence which was due to expire 10 days after the date of the offence. His Honour directed that no action be taken for breach of the bond.
The nature and seriousness of the Applicant’s conduct weigh against the exercise of the discretion in his favour. The Tribunal takes into account that that Australian community may afford a higher level of tolerance of the Applicant’s criminal conduct because he has lived in Australia from a young age and for almost his entire life.
Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Applicant told the Tribunal that at the time of the May 2015 offences he had not slept for about 24 days. His routine was to smoke marihuana after he got up, take heroin after taking the children to school, and smoke ice when his youngest daughter was asleep. He entered a methadone program in about November 2017. That is, after he was in immigration detention and after receiving the notice of mandatory visa cancellation on about 24 October 2017. There is no evidence that he has used drugs in detention.
Mr Watson-Munro’s opinion was that the Applicant suffered from a Substance Use Disorder from the age of 13 which had been in remission for some time as of July 2018. He noted that the Applicant had undertaken some programs and was on psychotropic medication. He also diagnosed Depressive Disorder (Severe & Recurring). He recommended outpatient treatment for the latter condition, mandatory continuation of the methadone, and additional ongoing random urine screen to sustain his motivation.
Mr Watson-Munro found the Applicant to be mature, have clear judgment, and strong motivation to deal with his problems and remain crime free and believed that with ongoing support, his prognosis will remain on a very positive trajectory.
The Applicant claimed that he had taken steps to become a better person, including the methadone program and taking drug and alcohol programs while in detention. He claimed that he would attend counselling sessions and would get assistance from Mr Watson-Munro when he is released from detention.
In his written statement, he expressed remorse for his crimes. At the hearing, the Applicant repeatedly made excuses for what he had done and sought to downplay the seriousness of his conduct in the May 2015 offences. His position is that he is not a violent person and he would not have committed any criminal offence if he had not taken drugs. The Tribunal finds that the Applicant does not remember what he did in May 2015 and therefore has difficulty accepting what he did.
The Applicant’s partner had been in prison for five months at the time of the hearing. Her mother said that her imprisonment related to her breaching an apprehended violence order in relation to the father of her three sons who had “set up” her daughter. The Tribunal does not have objective corroborative evidence of why she is there. When she was imprisoned in 2018, she was subject to two good behaviour bonds and a suspended sentence.
The sentencing judge’s remarks in 2017 show that the partner has a history of drug abuse, at least from 2012. When she was sentenced, she claimed to have been drug free for five years. His Honour did not accept that. He found that she was the ringleader in the 2015 incident. He sentenced her to two years imprisonment, suspended, and imposed a two year good behaviour bond.
Her counsellor/caseworker provided a statement dated 4 April 2018 which was optimistic about her progress. The Tribunal finds that was provided before the partner’s current incarceration. The Tribunal accepts the Applicant’s evidence that his partner found his being in detention very difficult.
There is a high risk that the Applicant will reoffend if he resumes drug taking, with the possibility that he may commit a violent offence as he did in 2015. Only three of his many offences have involved violence. He has committed property and driving offences, including offences that have put people at physical risk of harm.
His history shows that when he is supported and in a stable relationship he can avoid drugs. During an 18 month period from 2012 to 2013, the Applicant suffered three of life’s most difficult events, losing his job, a relationship breakdown, and the death of his mother. He returned to drugs and reoffended, culminating in the May 2015 offences.
The Tribunal accepts that being isolated from people he knows while in detention in Western Australia with an uncertain future, has been very difficult for the Applicant, but has also caused him to reflect on his situation. While in gaol and detention in Sydney, he was visited by his partner and the youngest child. He fears being removed from Australia to a place he does not know and where he knows no-one.
He has been in a controlled environment in detention. His capacity to stay drug free has not been tested in the community.
The Tribunal pointed out to the Applicant that if he were permitted to remain in Australia he may be returned to New Zealand if he reoffended.
The Applicant had letters of support from his older sister, younger brother, his partner’s mother, two friends, a cousin, his nephew and niece, and one of his partner’s three sons. His older sister lives in Queensland. His brother and his partner’s mother also gave oral evidence. There was no evidence from his partner or any of his children, one of whom is about to turn 18.
His partner will not be a positive support in his effort not to use drugs, however they have been in a relationship for more than five years which has survived his imprisonment and detention. Her mother, his sister and brother will support him because of their regard for him and concern that he may be removed from Australia if he reoffends. When he is released, he will be on parole until 14 June 2019.
The Tribunal has concluded that the Applicant does not present an unacceptable risk of harm to individuals, groups or institutions in the Australian community.
Best interests of minor children
The Applicant claims to have had six children with five different women. They are girls born in 2000 and 2005, boys born in 2007, 2010 and 2012, and a girl born in August 2013. The boys born in 2010 and 2012 have the same mother and live in Queensland. The mother of the girl who was born in August 2013 is his current partner. She was also a co-accused in relation to the May 2015 offence and is currently in prison.
He claims to support all his children emotionally and with child support when he can.
The Applicant claims to have a close relationship with the partner’s three sons from a previous relationship.

The Tribunal does not accept that the child born in 2013 is the Applicant’s biological child.
The sentencing judge set out the relationship history of the partner. She had three children during her first relationship. She entered a relationship with Mr S in 2012 who introduced her to using ice. She maintained that she ceased using ice “since March 2013 when she entered the relationship with him”. In context, “entered” is a typing error. It should read “ended”. The sentencing judge stated that the Applicant and she have a child. However, the parentage of the child was not in issue in that case.
The Applicant’s older sister mentions her brother’s four relationships and five children in her statement that was provided in support of the revocation requestion. She mentions the relationship with the Applicant’s partner but does not refer to the child.
At the hearing, the Applicant was very clear that he began the relationship with his partner on 17 September 2013, after he returned to Sydney following his mother’s death. The child was born in August 2013. When the Tribunal queried whether he was the father of the child, he said that he was sleeping with his partner from 2008 or 2009.
Four birth certificates were provided in support of the Applicant’s case. Two are difficult to read. The two legible certificates relate to the two girls born in 2000 and 2005. Both the other certificates relate to the birth of a male child. The family names of the mothers are discernible and accord with names mentioned by the Applicant’s sister and the Applicant. The Tribunal concludes that one of the birth certificates is for the son born in 2007 and the other is for one of the boys born in 2010 or 2012. There is no birth certificate for the child born in 2013. The Applicant states that the family name of that child is that of her mother. He stated that his four older children bear his name. That is consistent with the four birth certificates which show that each of the children bears his name, alone, or in combination with that of the mother.
The Tribunal does accept that the Applicant has played the role of a father to the child from September 2013 when he began living with his partner, to the present. That is, effectively for her whole life. There is no statement from the partner. On 2 April 2018, the migration agent representing the Applicant in relation to the application for revocation of cancellation wrote that the partner was undertaking medical treatment for mental issues. The Tribunal has the report of her counsellor.
The partner’s mother and her counsellor referred to the close relationship between the child and the Applicant. The Applicant was in custody or prison from 15 May 2015 until 14 September 2017 and then in detention, including for about a year in Western Australia. The child visited him with her mother while in prison and detention in Sydney and has contact with him via a mobile phone when he was in Western Australia.
The child is currently being cared for by the partner’s mother. The Applicant will live with them if he remains in Australia.
Revocation of the visa cancellation would be in the child’s best interests. The Tribunal gives this consideration great weight. Her mother is currently in prison. The removal of the Applicant to New Zealand would be even more detrimental to her in that circumstance. His presence in Australia will also support the partner which will also benefit the child.
The Applicant’s oldest daughter was born in 2000. She lives near Port Macquarie. The Applicant claimed that he sees her during school holidays, supported her in many ways, and loved her dearly.
He has never been her primary carer. There was no statement from the child who is nearly 18 years old.
The Applicant stated that “I think had my second child… on the 10^th Jan 2004”. The birth certificate shows that child was born in 2005. He claimed to have been in her life “throughout”, to see her every weekend, and loved watching her play sport. He claimed that while he was in detention, his partner went to watch the child play net ball, recorded the games and took photos for him. No such photographs or recordings were before the Tribunal.
The Applicant claimed that he had a tattoo on his forearm of the name of his third child, his first son, born in 2007, who lives in western Sydney with his mother. The Applicant claimed to see him every month “when I can”.
The Applicant claimed to see his two sons who were born in 2010 and 2012 during the long Christmas holidays.
When he was asked about there being no letters from any of his children, the Applicant claimed that statements from children are not allowed in court. The Tribunal does not accept that explanation.
The Tribunal notes that in 2017, the sentencing judge stated that the Applicant had three children to different partners and had some contact with them. The Tribunal finds that the three children referred to are the two boys born in 2010 and 2012 and the girl born in 2005. That is generally consistent with the evidence of the partner’s mother that she had met his daughter who was aged 14 or 15 and two boys.
The Tribunal accepts that the Applicant has some contact with the girl who was born in 2005 and the boys who were born in 2010 and 2012. It does not accept that he has contact with the child born in 2000 or the son born in 2007. It does not accept that he plays any significant parental role in the lives of his children after the relationship with the child’s mother has ended. They all live with their mothers. He pays child support if that is required and to the extent he is able.
The Tribunal has taken into account the evidence from others that supports his claim to be involved with his children’s lives, but gives it little weight. The people supporting the Applicant wish to help him. It does not accept that their evidence about this issue is well-founded.
He will not play a significant parental role to any of his children in the future.
It is possible that his children born in 2000 and 2007 may resume a relationship with their father. It cannot be said that revocation is not in their best interests. The Tribunal finds that revocation of the cancellation decision is in the best interests of each of the Applicant’s children. It gives that consideration minimal weight in relation to the children born in 2000 and 2007 and some weight in relation to the children born in 2005, 2010 and 2012.
In relation to his partner’s three sons, the Applicant is not their father. They have a father with whom they have been living at least since September 2017, as recorded by the sentencing judge. The Applicant and the partner’s mother claimed that they lived with him and the partner prior to May 2015. The Tribunal takes into account the letter from one of those sons. The Tribunal accepts that the Applicant was kind to those children before he was taken into custody. His future relationship with them is uncertain given the partner’s current incarceration and that they live with their father. The Tribunal finds that revocation is in the best interests of the children but gives that consideration little weight.
The Applicant’s nephew and niece, his older sister’s children, provided letters to support him. They and their mother claim that he has been more of a father to them than their own father. They live in Queensland with their mother. The Applicant does not play a parental role to those children. He lived in Queensland for about two years. The evidence does not demonstrate, what if any ongoing contact, he has with these children.
Revocation of the cancellation decision is in the best interests of these children but the Tribunal gives it little weight.
Expectations of the Australian community
As explained by Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, clause 13.3 is a kind of deeming provision and is adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. That is the Applicant’s position. He has a lengthy criminal history which includes serious and violent offences. The expectations of the Australian people are that the mandatory visa cancellation would not be revoked.
Other considerations
International non-refoulement obligations
The Applicant claimed that his father left New Zealand because of tribal issues. He provided no further information or evidence to support this claim. The Tribunal does not accept that Australia’s international non-refoulement obligations were raised for consideration. For certainty, the Tribunal does not accept that there is a real chance that the Applicant will suffer serious harm, or a real risk that he will suffer significant harm, if he returns to New Zealand.
Strength, nature and duration of tie
The Tribunal accepts that the Applicant has strong ties to Australia. He has lived here for 33 years since he was about two years old. His siblings, their children, his partner and her children all live here. He has other relatives and friends here. The Tribunal accepts that it is unlikely that his partner would relocate to New Zealand. She has four children. Three of them live with their father. She did have care of her young daughter until she was incarcerated in about May 2018.
While he does not play a significant parental role to his five children, they all live in Australia and he has a connection with three of them.
There is no suggestion in the evidence that those individuals are not Australian permanent residents or do not have an indefinite right to remain in Australia.
Principle 6.3 requires the decision-maker to give less weight where the non-citizen began offending soon after arriving in Australia and more weight given to the time spent contributing positively to the Australian community. The Applicant did not offend until he had been in Australia for about 12 years. He has contributed by working at various jobs from time to time since he was 16 years old.
This consideration weighs strongly in favour of revocation of the cancellation decision.
Impact on victims
There is no evidence of the impact of a decision not to cancel a visa on members of the Australian community, including victims of the Applicant’s crimes or their families. The Respondent argued that his criminal offences have caused disruption and fear and that this factor does not favour the Applicant.
The evidence does not raise this consideration which is directed to the impact of a decision not to cancel a visa, not the impact of the criminal offences.
Extent of impediments if removed
The Applicant is 35 years old. He has suffered a back injury which puts in doubt his capacity to work. He has been diagnosed with depressive disorder and substance use disorder. The Tribunal accepts that the Applicant would have access to similar health services and social security benefits in New Zealand as he does in Australia.
There are no language or cultural barriers to the Applicant’s removal.
The Applicant would be socially isolated in New Zealand. He knows no-one there. He has not visited there since he was a child.
This consideration weighs in favour of revocation of the cancellation decision.
CONCLUSION
The Tribunal is satisfied that the considerations in favour of revoking the mandatory cancellation of the Applicant’s visa outweigh those against doing so. It is satisfied that there is another reason why the original decision should be revoked.
The Tribunal sets aside the reviewable decision and in substitution decides that the mandatory cancellation of the Class TY Subclass 444 Special Category visa under section 501(3A) of the Migration Act 1958 (Cth) be revoked.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...............................[SGD]......................................
Associate
Dated: 24 October 2018

Date(s) of hearing: 10 October 2018

Applicant: In person

Solicitors for the Respondent: Kylie Crawford, Clayton Utz
THE APPLICANT’S CRIMINAL RECORD

Date	Offence	Sentence/Comment
21 December 1998	BIDURA CHILDREN'S COURT for:
	· Possess implements to enter/drive conveyance · Driver never held licence - 2nd or subsequent offence with intent 5 yr	(2 x) Charges dismissed with caution
	· Take and drive conveyance without consent of owner · Drive in a manner dangerous to the public	(2 x) $100, 12 month good behaviour and continue treatment with doctor
23 June 1999	BIDURA CHILDREN'S COURT FOR:
23 June 1999	· Larceny (less than $2000)	Charges dismissed with caution.
23 November 1999	COBHAM CHILDREN'S COURT FOR:
23 November 1999	· Larceny (more than $5000 and less than 15,000)	Probation: 12 months Fine $400
29 June 2000	COBHAM CHILDREN'S COURT FOR:
29 June 2000	· Drive in a manner dangerous to the public · Take and drive conveyance without consent of owner	(2 x) Probation: 12 months, attend counselling and take medication
7 February 2002	DOWNING CENTRE LOCAL COURT FOR:
7 February 2002	· Possess implements to enter/drive conveyance	Bond: 12 months
31 March 2003	PENRITH LOCAL COURT FOR:
31 March 2003	· Assault occasioning actual bodily harm	Fine $1500
25 September 2003	PENRITH LOCAL COURT FOR:
	· Never licensed person drive vehicle on road	Fine: $500
	· Take and drive conveyance without consent of owner	Imprisonment: 12 months non parole period 6 months*
	· Larceny (less than $2000) · Be carried in conveyance taken without consent of owner · Destroy or damage property (less than $2000)	(3 x) Imprisonment: 6 months*
	· Never licensed person drive vehicle on road	Fine: $1000 Disqualification: 3 years
	· Goods suspected stolen in/on premises	Imprisonment : 4 months* *(All terms of imprisonment commenced 24/09/2003; severity appeals with stays lodged in each case)
	· Unlicensed for class, class c/r/lr/mr/2nd offence	Bond: 2 years, including obeying all reasonable directions for counselling, educational development or drug and alcohol rehabilitation
· Use unregistered vehicle on road area (not a trailer) · Use uninsured motor vehicle	(2 x) Fine: $500
19 November 2003	PENRITH DISTRICT COURT RE APPEALS:
19 November 2003	· Larceny (less than $2000) · Take and drive conveyance without consent of owner · Be carried in conveyance taken without consent of owner · Destroy or damage property (less than $2000) · Goods suspected stolen in/on premises (m/v)	(5 x) Conviction Confirmed
22 December 2003	PENRITH LOCAL COURT FOR:
22 December 2003	· Break and enter building (steal) (less than $15,000)	Imprisonment: 12 months commencing 24/09/2003 non parole period with conditions 6 months; release subject to supv
2 November 2005	PENRITH LOCAL COURT FOR:
	· Use unregistered vehicle on road area · Drive uninsured vehicle	( 2 x) Fine: $250
	· Drive while disqualified from holding	Fine: $1000, disqualification: 2 years cumulative
	· Larceny (less than $2000)	Imprisonment: 12 months non parole period 8 months suspended on enter bond for 12 months including obeying all reasonable directions for counselling, educational development or drug and alcohol rehabilitation; ongoing weekly counselling;
22 February 2008	BLACKTOWN LOCAL COURT FOR:
22 February 2008	· Refuse/fail to comply with direction under part 14	Fine: $250
7 April 2008	PARRAMATTA DRUG COURT FOR:
	· Obtain money etc by deception (less than $2000) · Shoplifting (less than $2000)	(2 x) Imprisonment: 3 months, suspended*
	· Drive conveyance taken without consent of owner	Imprisonment: 12 months suspended*
	· Drive while disqualified from holding a licence	Imprisonment: 12 months, suspended*; disqualification 2 years commencing 25/09/2008 (not suspended)
	· Drive while disqualified from holding a licence	Imprisonment: 15 months, suspended; disqualification 2 years commencing 25/09/2010 s7(3) Drug Court Acct
8 May 2008	MT DRUITT COURT FOR:
8 May 2008	· Use uninsured motor vehicle · Use unregistered registerable class a motor vehicle · Driver/rider state false name/address	(3 x) Fine: $150
16 June 2008	PARRAMATTA DRUG COURT FOR:
16 June 2008	· Drive while disqualified from holding licence	Imprisonment: 14 months concurrent sentence suspended; disqualification 2 years (not suspended) suspended
8 February 2010	PARRAMATTA DRUG COURT FOR:
	· Drive while disqualified from holding a licence	Bond: 6 months continue care program; disqualification 2 years
	· Obtain money etc by deception (less than $2000) · Shoplifting (less than $2000)	( 2 x) Section 10a conviction with no other penalty
	· Drive conveyance take without consent of owner · Drive while disqualified from holding a licence · Drive while disqualified from holding a licence	(3 x) Bond: 6 months continue to pursue goals of continuing care program
23 April 2012	TWEED HEADS LOCAL COURT FOR:
	· Drive while disqualified from holding a licence · Police pursuit - non-stop - drive recklessly	(2 x) Imprisonment: 12 months suspended
	· Use unregistered vehicle on road or road related area · Drive uninsured vehicle	(2 x )Section 10a conviction with no other penalty
18 September 2012	SOUTHPORT MAGISTRATES COURT FOR:
	· Possessing dangerous drugs (date of offence 4/9/2012)	No conviction recorded
	· Possess utensils or pipes etc that had been used (date of offence 4/9/2012)	Good behaviour period: 3 months
1 July 2013	SOUTHPORT MAGISTRATES COURT FOR:
1 July 2013	· Commit public nuisance (on 16 June 2013)	Outstanding warrant
12 May 2014	MT DRUITT LOCAL COURT FOR:
	· Driver/rider state false name/address	Section 10a conviction with no other penalty Fine: $1500
	· Drive while disqualified from holding a licence	Imprisonment: 12 months suspended sentence Disqualification: 2 years
4 August 2014	PENRITH LOCAL COURT FOR:
4 August 2014	· Possess prohibited drug	Fine: $600
25 June 2015	PENRITH LOCAL COURT FOR:
25 June 2015	· Possess prohibited drug	Section 10a conviction with no other penalty
9 June 2016	PENRITH LOCAL COURT FOR:
9 June 2016	· Possess prohibited drug	Imprisonment: 1 month
7 September 2017	PENRITH DISTRICT COURT FOR:
7 September 2017	· Assault occasioning actual bodily harm in the company of others · Intentionally choke etc person with recklessness	( 2x) Imprisonment: 4 years, non-parole 2 years and 3 months

[2018] AATA 3976

24 October 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Remedies

Statutory Construction

Date(s) of hearing:	10 October 2018
Applicant:	In person
Solicitors for the Respondent:	Kylie Crawford, Clayton Utz