Pitcher and Minister for Home Affairs (Migration)

Pitcher and Minister for Home Affairs (Migration) [2020] AATA 497 (3 March 2020)
Division:GENERAL DIVISION
File Number: 2019/8346
Re:Reagan Lee Pitcher
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member Rebecca Arends
Date:3 March 2020
Place:Brisbane

The decision under review is affirmed.
..............................[sgd].........................................
Member Rebecca Arends
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) 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
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
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 Arends
3 March 2020
THE ISSUE BEFORE THE TRIBUNAL

Mr Reagan Pitcher (“the Applicant”) is a 26 year old citizen of New Zealand[1]. He first arrived in Australia, at the age of 15 months, on 15 January 1995. The most recent visa granted to him was a Class TY Sub-class 444 Special Category (Temporary) Visa (“the Visa”) on 8 August 1997. He has not left Australia since then.[2]
[1] Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), paragraphs 1 and 7.
[2] Exhibit 1, G-Documents, G-20 Movement history.
On 1 August 2016 the Applicant was convicted of trafficking in dangerous drugs, being methylamphetamine (“MDMA”) and sentenced to imprisonment for four and a half years to be suspended (for five years) after serving 18 months. At the same time he was convicted of other drugs offences for which he was sentenced to shorter terms of imprisonment (two years and one year) to be served concurrently with the first sentence.[3]
[3] Exhibit 1, G-Documents, G-8, page 50.
On 15 September 2016, while he was serving those sentences, a delegate of the Minister for Home Affairs (“the Respondent”) decided to mandatorily cancel his visa under

s 501(3A) of the Migration Act 1958 (Cth) (“the Act”). The Applicant made representations as to why the decision should be revoked, and the decision was subsequently revoked on 12 January 2017.[4] The notice of that revocation contained the following warning:
Please note: this decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.[5]
[4] Exhibit 1, G-Documents, G-3, page 9.
[5] Ibid.
The Applicant signed an acknowledgement of having received the notice on 12 January 2017. Despite this warning, the Applicant subsequently committed further drug related offences for which he was sentenced to concurrent periods of imprisonment of six months, six months, and three months.[6] On 14 June 2018 the Respondent, again, decided to mandatorily cancel the Applicant’s visa under s 501(3A) of the Act.[7]
[6] Exhibit 1, G-Documents, G-8, pages 49 and 50.
[7] Exhibit 1, G-Documents, G-4, pages 11 to 15.
On 10 July 2018, the Applicant wrote to the Respondent requesting a revocation of that decision. On 10 December 2019, pursuant to s 501CA(4) of the Act, the Respondent decided not to revoke its decision (“Decision under Review”).[8]
[8] Exhibit 1, G-Documents, G-7, pages 36 to 48.
The Applicant lodged an application with this Tribunal on 17 December 2019 seeking a review of the Decision under Review.[9] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.[10]
[9] Exhibit 1, G-Documents, G-2, pages 3 to 8.
[10] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of this application proceeded on 14 February 2020 and received oral evidence from the Applicant and Dr Gavan Palk, forensic psychologist. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “A”.
THE APPLICANT’S BACKGROUND AND OFFENDING
The Applicant was born on 12 September 1993, and he has lived in Australia continuously since the age of three. His parents are both living and he has a younger brother.[11] He claims that all his family, including his uncles, aunts, grandmother and cousins all live in Australia.[12]
[11] Exhibit 1, G-Documents, G-12, page 70.
[12] Exhibit 1, G-Documents, PG-11.
The Applicant’s criminal history is lengthy and contains a multitude of offences and sentencing episodes. It starts on 13 January 2013 when the Applicant was 19 years old and was caught in possession of a quantity of MDMA, several $50 notes, a piece of paper with names and monetary amounts written on it, a glass pipe and a small knife. He told police he carried the knife with “the intention of scaring or threatening any person that he may have a confrontation with” because he had “previously been bashed and stomped”. When police checked his mobile phone they saw several drug related messages.[13] On 25 March 2013, he was convicted of supplying dangerous drugs, possession of utensils or pipes etc for use and possessing a knife in public with respect to his conduct on 13 January 2013, and he was convicted of associated drug related offences. For all the offences, he was fined and a conviction was not recorded.[14]
[13] Exhibit 2, Summonsed materials, pages 15 to 18.
[14] Exhibit 1, G-Documents, PG-8, page 52.
On three more occasions, between 31 October 2013 and 28 April 2014, the Applicant was brought before the courts in relation to offences that included possessing dangerous drugs (multiple), possessing property suspected of having been used in connection with the commission of a drug offence, possessing utensils or pipes and possession of a knife in a public place or a school, and sentenced to fines without a conviction being recorded.[15]
[15] Ibid.
Between 3 June 2014 and 10 September 2015 the Applicant was dealt with by the courts on five more occasions with respect to a total of some 20 offences that included possessing dangerous drugs, possession of a knife in a public place or a school, possessing property suspected of having been used in connection with the commission of a drug offence, breach of bail condition, dishonesty offences, stealing, attempted stealing, possessing utensils or pipes etc for use/that had been used, possessing/acquiring restricted items (a telescopic baton[16]), and contravening a direction or requirement. On two of those occasions (28 November 2014 and 9 February 2015) he was sentenced to 12 months of probation.[17]
[16] Exhibit 2, Summonsed material, page 76.
[17] Exhibit 1, G-Documents, PG-8, pages 50 to 51.
I pause here to note that on one occasions, the police apprehended the Applicant in his car and found MDMA contained in clip seal bags and two knives with fold-out blades that were in the centre console of the car and clearly visible from outside the car. The Applicant told police he was conveying the knives to his home. In evidence before the Tribunal he said the knives were “Stanley” knives (with fold out blades) that he was taking from his work to his home.[18] He was, however, subsequently convicted of possessing a knife in a public place (and possessing dangerous drugs). I take into account both the conviction and the Applicant’s explanation.
[18] Transcript, page 14, lines 5 to 35.
On 1 August 2016 the Applicant was convicted of trafficking in dangerous drugs between 10 April 2014 and 3 April 2015 and sentenced to four and a half years imprisonment to be suspended (for five years) after serving 18 months.[19]
[19] Exhibit 1, G-Documents, PG-8, page 50.
The offence of trafficking differs from the offence of supply in that trafficking is the conduct of a business of supplying illicit drugs. This trafficking offence encapsulated multiple occasions on which the Applicant was caught by police in possession of MDMA, and in possession of a mobile phone containing text messages or Facebook messages that indicated that he was dealing in MDMA to multiple people. For example: [20]
·on 12 May 2014 police searched the Applicant’s home and seized a mobile phone that contained over 2100 text messages sent between 8 April 2014 and 22 May 2014, a large portion of which related to the Applicant organising the supply of illicit drugs to at least 19 people; and
·on 20 February 2015 police observed two cars acting suspiciously in a public car park at night. In one car, the Applicant was sitting in the passenger seat and his father was sitting in the driver’s seat. Police found a quantity of MDMA and a mobile phone in the Applicant’s possession. The phone contained 258 text messages between 16 February 2015 and 20 February 2015 which were a continuation of messages from a phone that was previously seized relating to the supply of drugs by the Applicant to multiple persons.
[20] Exhibit 2, Summonsed material, pages 113 and 114.
The Applicant’s methods involved soliciting drug deals by sending text messages to multiple contacts at the same time with the text “u want” or similar variations. The customers would then respond or individually seek out the Applicant to purchase drugs. The Applicant would then correspond with other persons about the orders placed by his customers. He would then deliver the drugs to the customer or have the customer attend an address to collect the drugs in exchange for money or goods.[21]
[21] Exhibit 2, Summonsed material, page 114.
At the same sentencing event on 1 August 2016, the Applicant was convicted of trafficking in dangerous drugs, he was also convicted of:
(a)possessing dangerous drugs schedule one drugs quantity of or exceeding schedule three but less than schedule four on 21 February 2015 (while he was on probation) for which he was sentenced to two years imprisonment to be suspended (for five years) after serving 18 months;
(b)possessing dangerous drugs on 20 February 2015 (while he was on probation) for which he was sentenced to one year imprisonment; and
(c)two charges of supplying schedule one dangerous drugs on 31 March and 2 April 2015 for which he was not further punished.[22]
[22] Exhibit 1, G-Documents, PG-8, page 50.
The learned sentencing Judge ordered that all terms of imprisonment be concurrent and that any time the Applicant had spent in pre-sentence custody be deemed to be time already served. At the time when the sentences were imposed, being 1 August 2016, the Applicant had served 484 days in pre-sentence custody (between 6 April 2015 and 31 July 2016).[23]
[23] Ibid.
In sentencing the Applicant, the learned sentencing Judge observed:
“Your offending is serious. The trafficking period… is a little under 12 months. It involved the dangerous drug, methylamphetamine, which is a terrible problem in our society. A consideration of the statement of facts reveals it was sustained and persistent behaviour over that time period. You had multiple customers, and there was a regularity with which you were engaged in this activity
It is made more serious by reason of the fact that throughout the period, you were spoken to by police on a number of occasions. You were given a notice to appear; it did not change your ways. Throughout the period, you were in fact convicted and placed on probation not once but twice, but did not change your ways. That makes your offending much more serious, in all the circumstances.”[24]
[24] Exhibit 1, G-Documents, PG-10, page 57.
In the Applicant’s favour, the learned sentencing Judge said the following:
“…I do not doubt that spending 484 days in custody, for a young person who has never been in custody before, would be an awful experience and has, no doubt, caused you to reflect on your attitude to offending.”[25]
…
“…You were 20 to 21 at the time of the trafficking period and the other offences. I have regard to what is said in the psychologist report, about the fact that you really were quite addicted to drugs at the time. I do take that into account.
I also have regard to the matters that are set out in the psychological report, which really suggests you also were a young person with attitudes in relation to society, which the psychologist describes as sufficient to meet the criteria for oppositional defiant disorder. In that context, it is quite significant what is said in the offender case file. With that type of disorder, you would expect you would be being reported by the authorities for non-compliance in relation to matters. It does suggest that you have matured while you are in custody. This is a matter to your credit. I take that into account
I have regard to what is said in the references. They speak highly of you.”[26]
…
“The sustained nature of your trafficking is such that, as I indicated to your counsel, it is not met by a sentence of imprisonment of three or four years. It is far more serious than that, having regard to the fact that it was sustained, including a period when you are on probation orders. However, your prospects of rehabilitation satisfy me that you are an appropriate candidate for a suspended sentence.”[27]
[25] Ibid.
[26] Ibid, page 58.
[27] Ibid, page 59.
His Honour then warned the Applicant that:
“…I put you on notice that if you come back before me for a drug -related offence, you will have great difficulty in convincing me would be unjust to order you to serve the balance of that sentence. I am giving you an opportunity… If you do not take advantage of it and you come back before me for a breach of that suspended sentence, you cannot expect sympathy.”[28]
[28] Exhibit 1, G-Documents, PG-10, page 59.
In September 2016, the Respondent notified the Applicant of its decision to cancel his visa. On 12 January 2017 that decision was revoked and the Applicant was warned that cancellation could be considered if he were to re-offend.
The Applicant was released from jail on 5 October 2016.[29]
[29] Exhibit 1, G-Documents, PG-10, page 60, lines 23 to 28.
Following his release, the Applicant committed the following further offences:
·on 6 August 2017, driving under the influence of drugs (MDMA); [30]
·on 5 September 2017, careless driving (he swerved his car and veered into oncoming traffic so that at least one vehicle had to leave the road to avoid him); [31]
·on 8 September 2017, driving under the influence of drugs (MDMA) and unlicensed driving[32] for which he was charged and granted bail[33];
·on 1 December 2017, fail to appear in accordance with a bail undertaking; [34]
·on 19 December 2017, possession of dangerous drugs (MDMA), possession of utensils or pipes etc that had been used, and possession of anything used in the commission of a crime;[35]
·on 30 January 2018, possession of dangerous drugs (MDMA);[36] and
·on 18 May 2018, driving under the influence of drugs (MDMA).[37]
[30] Exhibit 2, Summonsed material, page 207.
[31] Exhibit 2, Summonsed material, page 207.
[32] Ibid.
[33] Exhibit 1, G-Documents, PG-9, page 54, lines 10 to 15.
[34] Exhibit 1, G-Documents, PG-8, page 50.
[35] Ibid.
[36] Ibid.
[37] Exhibit 2, Summonsed material, page 207.
The Applicant committed all of these offences during the operational period of a suspended sentence, meaning he committed them while was under an obligation to be of good behaviour and at risk of having to serve the suspended portion of his sentence if he did re-offend. Further, when he committed the last four offences he was also on bail and at risk of being remanded in custody on the charges that were pending against him if he breached his bail condition, including the condition that he refrain from offending.
On 28 May 2018 the Applicant was sentenced for the three offences committed on 19 December 2017 to periods of imprisonment of six months, six months and three months respectively with a parole release date of 30 July 2018.
In sentencing the Applicant the learned Magistrate observed:
“So it is difficult to see how there could have been less compliance with the law and less compliance with your obligations that you have shown because it is quite apparent you have not stopped your drug use at all, and not only are you persisting with it, but you are even getting behind the wheel of a car repeatedly with drugs in your system and presenting a risk to every other person on the roads who might have the bad luck to come across you while you are behind the wheel with drugs in your system…
…You have had significant rehabilitative efforts made available to you by the state and you have not taken advantage of those. You have had what was supposed to have been a significant deterrent penalty imposed on you by the Supreme Court and you have not taken advantage of that and you have not been deterred by it.
There comes a point where a person wears out their claims to rehabilitative leniency and you are certainly in that position,
particularly having been sentenced to one months imprisonment. In fact, effectively a month imprisonment from the 4^th of October through to the 4^th of November of last year for drug driving whilst unlicensed, and your drug offending then comes on the 19^th of December. So basically immediately after your parole has finished, you are still taking drugs and you are still committing offences. So it is quite apparent that a deterrent penalty needs to be imposed because you are not getting the message and leaving you to deal with the issue by yourself is clearly a - an unacceptable option for the community.”[38]

[Underlining added]
[38] Exhibit 1, G-Documents, PG-9, page 54.
Subsequently to that, on 20 June 2018 the Applicant was convicted of failing to take reasonable care and precautions in respect of a syringe or needle on 20 May 2018.
In addition to the drug-driving and careless driving offences, the Applicant has committed numerous less serious traffic infringements, including unlicensed driving, driving a defective vehicle, failing to display red plates, and exceeding the speed limit in a school zone.[39]
[39] Exhibit 2, Summonsed material, pages 207 to 211.
An analysis of the Applicant’s offending history reveals that he:
·has been brought before the courts on 14 separate occasions, and has been convicted of some 43 criminal offences and some 20 traffic infringements[40];
·persisted in committing offences while on probation, during the operation period of a suspended sentences and while on bail; and
·has been sentenced to a total of eight years and nine months of imprisonment, of which he was ordered to serve 20 months in actual criminal custody.[41]
[40] The Applicant’s traffic record (Summonsed material pages 207 to 211) contains two speeding offences in May and July 2015 when the Applicant was on remand. These have not been included).
[41] Exhibit 1, G-Documents, PG-8 and PG-10.
LEGISLATIVE FRAMEWORK

Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)       The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(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.
There is no question 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:[42]
“…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…”[43]
[42] [2018] FCAFC 151.
[43] 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.[44] I will address each of these grounds in turn.
[44] 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”.
The Applicant was sentenced to concurrent terms of four and a half years, two years and one year imprisonment in 2016, and to concurrent terms of six months, six months and three months imprisonment in 2018. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served[45]. Further, s 501(7A) of the Act provides that, for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently, the whole of each term is to be counted in working out the total of the terms. Accordingly, for present purposes the 2018 sentences total 15 months. The Applicant rightly concedes in his Statement of Facts, Issues and Contentions (“SFIC”) that he has a “substantial criminal record”.[46]
[45] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
[46] Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), paragraph 46.
I am satisfied that the Applicant does not pass the character test. The Applicant 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.[47]
[47] On 28 February 2019, the former applicable direction, Direction No 65 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
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:
(1) 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.[48]
[48] 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”[49] and “Other considerations”.[50] The Primary Considerations are set out in paragraph 13(1) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
[49] Paragraph 13 of the Direction.
[50] Paragraph 14 of the Direction.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise 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:[51]
“…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.”[52]
[51] [2018] FCA 594.
[52] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(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;
(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;
(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 for determining whether to exercise the discretion.
I now turn to addressing these considerations.
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:
(1)The nature and seriousness of the non-citizen’s conduct to date; and
(2)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. Relevant (for present purposes), amongst those factors are:
(a)…
(b)…
(c)…
(d)Subject to paragraph (b) above[53], 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)…
(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)…
[53] Factor (b) refers to the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. This principle is not relevant to the present application.
Factor (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker to have regard to the sentences imposed by the Courts for the Applicant’s crimes. The imposition of a custodial term is normally a measure of last resort in the hierarchy of sentencing options available to a sentencing court, and that is borne out when one examines the general escalation of the sentences imposed on the Applicant over the course of his offending. The Applicant had the benefit of non-custodial terms on the first nine occasions that he came before courts for sentencing, and on the first five of those occasions he received only fines and his convictions were not recorded. The criminal justice system has given him many chances. His first custodial sentence was for four and a half years, two years and one year of imprisonment (concurrently) in 2016 for drug trafficking and other related offences, making a total of seven and a half years imprisonment. The learned sentencing Judge noted that the Applicant had committed much of the offending while on probation. In relation to the non-parole period, it is noteworthy that, even after the learned sentencing Judge took into account mitigating factors including evidence that the Applicant had good prospects of rehabilitation, he set it at 18 months – a considerable length of time to serve in custody. Such a sentence is indicative of the very serious nature of the Applicant’s offending.
Likewise, the sentences of imprisonment that were imposed on the Applicant in 2018 for possession of MDMA and related paraphernalia reflect the seriousness of that offending. The learned sentencing Magistrate, having taken into account the offences themselves, and that fact that they were committed when the Applicant was subject to a suspended sentence and on bail, imposed sentences of imprisonment for six months, six months and three months (totalling 15 months) and required the Applicant to serve approximately two months in custody.
Taking into account both sentencing episodes, the sentences imposed favour of a finding that the Applicant’s offending is, in its totality, very serious.
Factor (e) of paragraph 13.1.1(1) of the Direction refers to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The Applicant’s offending can readily be said to be frequent, given he committed some 43 offences and 20 traffic infringements in the wider community over a period of approximately five and a half years which included 18 months in which he was incarcerated. Not only that, he repeatedly committed the same kind of offences: he has consistently been found in possession of MDMA and items associate with its use and supply, and he has been convicted of multiple offences involving the possession of weapons and his most recent offending includes three drug-driving offences.
The Applicant’s offending was clearly serious in the period from 10 April 2014 to 3 April 2015 which is the period spanned by the drug trafficking offence. What is not apparent, however, is whether this offence constituted an escalation in the Applicant’s offending or if, instead, it reflects an increased police interest in the Applicant during that period as a result of him being identified as involved in the MDMA trade. The earliest offence, after-all, in the Applicant’s criminal history is supplying dangerous drugs (MDMA). Another measure of the seriousness of a person’s offending is the circumstances in which it occurs, and this was recognised by the sentencing Judge in 2016 and the sentencing Magistrate in 2018. The Applicant has persistently offended despite being apprehended by police, having his car and residence searched, being charged by police, being convicted and put on probation, and being incarcerated and then released on a suspended sentence. By this measure, the seriousness of the Applicant’s offending has increased over time as he has continued to offend despite more and more interventions.
Another facet of the Applicant’s offending is his extensive history of traffic infringements. Prior to his first period of incarceration, he had:[54]
·exceeded the speed limit by at least 13 km/h but not more than 20km/h (multiple, including once in a school zone);
·move into path of approaching tram;
·failed to display legible red plates (multiple); and
·driven a defective vehicle (multiple).
[54] Exhibit 2, Summonsed materials, pages 207 to 212.
Following the Applicant’s release from prison on 5 October 2016 he:
·continued to offend by driving unlicensed and driving a defective vehicle; and
·embarked on a new and more dangerous kind of traffic offending - driving under the influence of MDMA on three occasions and careless driving on one occasion.
The careless driving offence arose from the Applicant veering into oncoming traffic on a highway, causing at least one car to leave the road to avoid a head-on collision. Clearly this offending put lives at risk. The Applicant gave evidence that he had worked a long day and was tired. This does not in any way mitigate the seriousness of this offence.
I now turn to the drug-driving offences. Road rules exist to protect the safety of the community. The potential danger a motorist with impaired driving ability poses to motorists, cyclists and pedestrians cannot be overstated. An impaired driver is not only at increased risk of causing a collision but is also less capable of avoiding a collision. On one of the occasions when the Applicant was caught driving under the influence of MDMA, he was driving in a metropolitan area[55] on a school day at around the time when school finishes so that there was a real possibility that there would be students crossing the road and using footpaths adjacent to the road.
[55] Wickham Terrace, Spring Hill.
In relation to the Applicant’s traffic offending, the more recent offences carry a greater and more obvious risk of serious harm, or even death, to members of the Australian community, and they reflect not only a lack of respect for road rules but an indifference to the safety of others. This offending represents a significant increase in the seriousness of this category of the Applicant’s offending.
Considering the totality of the Applicant’s offending, application of this factor (e) weighs heavily in favour of non-revocation.
Factor (f) of paragraph 13.1.1(1) of the Direction refers to the cumulative effect of repeated offending. The Applicant promoted and circulated MDMA in the community over an extended period of time to multiple persons. While there is no evidence before me of the effect of his drug trafficking on any particular person, it is well accepted that trafficking an illicit drug of dependence is an activity that, by its very nature, is capable of causing harm to individual drug users and to the wider community through drug-related crime. The Applicant knows this as well as anyone: as a consumer of MDMA he experienced his life (in is words) spiral out of control and he lost his employment, he committed stealing, fraud and other offences to fund his drug dependency, and he consumed a great deal of police and court resources. The more MDMA the Applicant circulated within the community, the greater the potential for harm to members of the community. The Applicant trafficked MDMA to at least 19 people over at least a 12 month period. What is worse, he put temptation in front of his customers and solicited drug-deals by sending bulk text messages to his contacts that said “u want” or similar. The cumulative effect of his drug trafficking over at least a 12 month period must be substantial.

While the Applicant was convicted of several offences of possession of a knife in public, and one of possession of a telescopic baton, there is no allegation in the materials before me that he ever used them or committed any offences of violence. It is very fortunate that the Applicant’s traffic offences do not appear to have caused harm to any person or property. Accordingly, this offending does not attract significant weigh with respect to this factor (f).
However, the cumulative effect of the Applicant’s repeated drug offending is sufficiently serious to support a finding that this factor (f) weighs moderately in favour of non-revocation.
Factor (h) of paragraph 13.1.1(1) of the Direction refers to 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.
In September 2016, after he was imprisoned for drug trafficking (and other offences) the Applicant received the strongest kind of warning in the form of the cancellation of his visa. That cancellation decision was subsequently revoked by the Respondent after representations were made by the Applicant. The notification of the revocation of that decision contained the following warning:
Please note: this decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.[56]
[56] Exhibit 1, G-Documents, G-3, page 9.
The Applicant signed an acknowledgement that he had received that document. He does not dispute having received the letter or claim not to have understood its contents. (His SFIC states that there were not any warnings or previous visa cancellations, however in the hearing his solicitor helpfully identified that contention as having been made in error[57])
[57] Transcript, page 48, lines 23 to 26.
Despite this, following the Applicant’s release from prison, he committed three drug-driving offences (and other traffic infringements), and six criminal offences relating to drug use, including three for which he was sentenced to terms of imprisonment.
Having been given the opportunity to return to the wider Australian community, and having been warned not to re-offend, the Applicant did just that, several times. In these circumstances, pursuant to this sub-paragraph (h), the Applicant offending is “very serious”.
I do not consider factors (a), (b), (c), (g) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances, so they do not require consideration.
Applying the relevant sub-paragraphs (d), (e), (f), and (h) of paragraph 13.1.1(1) of the Direction to the facts and circumstances of the Applicant’s offending, I assess his offending to be very serious and I find that this weighs heavily against revocation of the mandatory cancellation decision.
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.
The nature of the harm to individuals or the Australian community were the Applicant to 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, which has been relatively consistent. 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.
The Applicant has displayed an inability to refrain from using MDMA in the broader community, and a propensity to:
(a)traffick and supply MDMA to fund his own use;
(b)violate road safety rules; and
(c)carry weapons, although there is no evidence that the Applicant has ever used weapons or committed any violent crimes.
As already observed, the Applicant’s experience with MDMA is an example of the harm that the trade in illicit drugs brings to the community in terms of the very adverse impact on him personally and the drug-related offences he committed. The nature of the harm is clearly serious, and it is an indication of the likely nature of the harm to be occasioned upon other members of the community should he engage in further trafficking activity involving the distribution of illicit drugs of dependence to others.
The drug-driving and careless driving offences have the potential to cause serious injury and death to other road users and pedestrians. I am cognisant that the Applicant’s previous driving offences have not, in fact, resulted in harm to any person, however on at least one known occasions he would have caused a head-on collision had it not been for the evasive action taken by other drivers. The risk of such offending, if it continues, causing serious harm or death is real and substantial. Therefore, the nature of the harm to individuals or the Australian community should the Applicant continue to drive in a careless manner and/or under the influence of MDMA is very serious and potentially catastrophic.
The Applicant has a tendency to carry weapons, according to him, for self-defence. The first record in the materials before me of interaction between the Applicant and the police, on 10 January 2013, records the explanation he gave to police for possessing a knife. The report says:
“…the knife…was carried for the intention of scarring or threatening any person that he may have a confrontation with as he has previously been bashed and stomped. He then stated that he is not a good fighter and carries the knife on him when he is waling [sic] the streets after the sun goes down.”[58]
[58] Exhibit 2, Summonsed materials, page 16.
After being apprehended and ultimately convicted for being in possession of a knife in public on this occasion, the Applicant continued to carry weapons with him. While, he said he carried a knife for self-defence - to scare or threaten people - and there is no evidence of him using a weapon or committing an act of violence, his tendency to carry weapons of this calibre is concerning, particularly if he does so while under the influence of illicit drugs, as it creates the potential for serious harm to individuals or the Australian community.
Having regard to the offending involving the trafficking and supply of illicit drugs, the careless driving, and the drug-driving, the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct of this type is very serious and potentially catastrophic.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has put forward some explanations for his offending. In his written request for revocation of the decision to cancel his visa, dated 5 July 2018, in response to the question:
“Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision-maker?”
the Applicant wrote:
“When I was released last time I met a girl and things were okay for a while when we broke up she said she was pregnant she went to Melborne [sic] still saying she was pregnant. When she would have been 7 ½ months she told me she was in a car accident and the baby died. I didn’t cope well turning back to drugs then I found out she was lying the whole time and that’s when I hit it hard.”[59]
[59] Exhibit 1, G-Documents, PG-12, page 71.
He added that:
“I thought I was going to be a dad, things were looking up and I found out it was just a lie I couldn’t cope so Id turned to drugs again!!”[60]
[60] Ibid.
Under the heading “ANY OTHER INFORMATION”, the Applicant wrote:
“I have not in the past been able to cope with stress so I turn to drugs I know it’s no excuse but it was the only way I could cope when they told me my mum was very sick and could die then my Nanna was diagnosed with a very rare cancer we thought she had beaten it and now they have found five more tumours that they cant remove and the government doesn’t cover full treatment so she could die.
I though I was going to be a father and found out it was a lie that just put me on a path of self-destruction I really felt like everything was against me but just before I was put back in jail my Dad got me a great job I was to start a coarse the day after I went to court to get my A Class in Asbestos my future was starting to look up I would work with my dad I loved the thought that Id be qualified at something I know I need help with this I know I can’t do it on my own. Ive wasted enough of my life I just need a chance to prove it if I’m deported I could never see my Nana before she passes away I would have to live with that for the rest of my life.”[61] [Errors in original]
[61] Ibid, page 74.
On 4 January 2020, the Applicant made a statement in this matter. In it he said:

“14. …I foolishly began using drugs in an attempt to mask the pain I was feeling after my mother was diagnosed with a rare heart condition.
15. I struggled immensely with that period of my life, my mother was constantly in and out of hospital, and the upset and worry I was experiencing was too much for me to deal with.
16. My grandmother[62] was then diagnosed with a very rare form of cancer, which added to my stress.
[62] In his Personal Details form the Applicant speaks of his “Nana” being sick with cancer (in the present tense) and reports that his “grandmother” died a while ago. I take the references to his “grandmother” being sick to be references to his “Nana” who is still alive.
17. My ex-partner, who was then pregnant, was involved in a car crash, and ended up on life support machine, we lost our unborn baby due to that accident.
18. I was in a very disturbing place mentally and also physically.
20. My drug use began as occasional, however it very quickly escalated and before I knew what was happening the drugs had taken control of me.
21. I was using almost my whole pay check to cover the cost of my addiction and I quickly began to rack up debts.
22. My life was quickly spiralling out of control, and my debt was rising from all angles.
23. By 2013, my life was a mess.
24. I thwen lost my employment due to the drug use. [sic]
25. I had built up a debt with the person who was supplying me the drugs, and I had no way to repay it.
26. This person then, threatened me as I was unable to pay him on time.
27. I was then told I was to take the drugs from him, and to sell them on to my friends as a way of being able to repay him
28. I knew this was wrong, and illegal, however, at the time I did not believe that I had any other choice, but to do what I was instructed.”[63]
[63] Exhibit 4, Statement of Reagan Lee Pitcher, 4 January 2020, paragraphs 14 to 28.
The Applicant’s SFIC broadly repeats these assertions.
The Applicant’s written evidence about an ex-girlfriend losing a baby is inconsistent with respect to whether the incident contributed to his initial use of drugs or triggered his relapse into drug use after his first period of incarceration, and whether the story about the pregnancy and baby dying was true or false. However, in the hearing in response to a question from the Tribunal, “Is your evidence that you re-connected with her after your first period of imprisonment?”, the Applicant replied “I got with her when I got released from detention last time”.[64] In response to a follow-up question “Is your evidence that what she told you about the baby caused you to re-offend - to start re-offending?” the Applicant replied “No. I was still using, and yes, after---”.[65] This is consistent with Dr Palk’s report that “[The Applicant] indicated the reason [his ex-partner] left him was because he started using drugs again”.[66] I find that if there was an ex-partner who told the Applicant she had lost his baby, that did not happen until after his first period of incarceration and I am not satisfied that it caused his relapse into drug use.
[64] Transcript, page 26, lines 18 to 20.
[65] Transcript, lines 26 to 29.
[66] Exhibit 11, Report of Dr Gavan Palk, paragraph 6.10.
What remains, in terms of explaining the Applicant’s drug use and addiction is his inability to cope with his mother’s and grandmother’s respective medical conditions. This is fleshed out a little in the report of Dr Palk (discussed later in this decision) who refers to the Applicant suffering panic attacks due to his mother’s and grandmother’s medical conditions, and using MDMA to cope with his anxiety and panic attacks. The Applicant has not produced any medical evidence of the claimed medical conditions, however, his father’s letters of support mention that the Applicant’s grandmother is cared for by his mother and that his mother has a heart defect[67]. On this basis I accept that both his mother and grandmother have some medical problems. These risk factors continue to be present in the Applicant’s life.
[67] Exhibit 1, G-Documents, G-14 and G-22.
In August 2016, when the Applicant was sentenced to his first period of imprisonment, the learned sentencing Judge credited him with having prospects of rehabilitation at that time. His Honour had before him a psychologist’s report and references that spoke highly of the Applicant. His Honour noted that:
·the Applicant was remorseful;
·according to the psychologist’s report he suffered from Oppositional Defiance Disorder and, in that context, it was significant that there were no reports of non-compliance while he was in pre-sentence custody, and that this suggested that he had matured while in custody; and
·a negative test while in custody indicated that he had taken steps towards rehabilitation.
After being sentenced, the Applicant served two months in prison[68]. His visa was cancelled in September 2016, and subsequently re-instated in January 2017. The very real threats of incarceration and/or deportation were not sufficient to deter the Applicant from resuming his use of MDMA and re-offending. Seven months later he was caught driving unlicensed with MDMA in his bloodstream. He went on to drug-drive twice more and to commit other traffic and drug-related offences until he was again imprisoned in May 2018.
[68] Having already spent around 16 months in pre-sentence custody.
When he was sentenced to imprisonment in May 2018, he applied for bail in relation to his breach of his suspended sentence that was to be dealt with in the Supreme Court in August 2018. In response, the learned sentencing Magistrate asked the Applicant’s lawyer why he would not find that the Applicant posed an unacceptable risk of re-offending. His lawyer said:
“…he’ll be on parole as of that date…that militates against any risk of re-offending”
to which His Honour said:
“Well. The history shows that it doesn’t. So bail is refused. The defendant is an unacceptable risk of reoffending.”[69]
[69] Exhibit 1, G-Documents, PG-9, page 55, lines 15 to 25.
The Applicant now claims that he will not re-offend. In his written request for revocation of the decision to cancel his visa, dated 5 July 2018, the Applicant wrote:
“…I now finally understand the impact that this will have on everyone I know if I get sent back to NZ and these crimes I have committed are one of the biggest regrets of my life. So just not for me but for all my friends and family please allow my visa to be reinstated as I am a good person that has made some stupid mistakes that I will not make again.”[70]
[70] Exhibit 1, G-Documents, PG-11, page 64.
The claims that he makes in his Statement about his rehabilitation can be summarised as follows. He: [71]
·is a much more mature individual;
·has had the opportunity to reflect on his past poor decisions;
·is totally ashamed of his criminal actions and has seen the upset and hurt that he has caused to his family;
·acknowledges, and is more acutely aware of, the damage that drugs cause in the community;
·is determined not to reoffend;
·while in prison, began attending Narcotics Anonymous and Alcoholics Anonymous on a weekly basis;
·in immigration detention, attends weekly church groups, and has completed a Men’s Group course and a Life Skills course which he believes have given him greater insight into his past decisions and led him on a positive path; and
·has not “touched a drug since my arrest in 2017, almost 3 years now, clean of drug use.”
[71] Exhibit 4, Statement of Reagan Lee Pitcher, 4 January 2020, paragraphs 41 to 51.
Further, the Applicant conceded that “my path to complete success is a long one, and will take many years to complete, I am however, ready, eager and willing to complete that path.”[72]
[72] Exhibit 4, Statement of Reagan Lee Pitcher, 4 January 2020, paragraph 49.
There are, before the Tribunal, letters of support from each of the Applicant’s parents, two friends of the Applicant, his grandmother and a previous employer. The letters from his family and friends speak of his good character and seek to explain his offending in terms of a lapse brought about by personal circumstances and/or associating with the wrong people. It is concerning that the letters from each of his parents and one of his friends point to the loss of an unborn child as a causative factor in the Applicant’s return to drug use[73] seeing as the Applicant admitted before the Tribunal that he had returned to drugs before his ex-partner left him (which, according to him, occurred before she told him she had lost their baby). None of the letters meaningfully address the Applicant’s re-offending after his first period of incarceration or come close to providing any level of comfort that the Applicant will not go on to re-offend if he is returned to the Australian community this time around. While these letters suggest that the Applicant has a handful of supportive people in his life, and one who is willing to offer him employment, that is as far as their evidence goes.
[73] The Applicant’s mother uses the phrase "he turned to drugs to numb his pain", his father used the phrase "back to the drugs" and a friend uses the phrase "he relapsed back towards drugs" in relation to the Applicant’s ex-partner losing their baby.
Dr Gavan Palk, forensic psychologist, provided a statement and gave evidence in the hearing. The salient features of Dr Palk’s evidence can be summarised as follows:
·Dr Palk was asked at very short notice to provide an opinion about the Applicant’s psychological status and his risk of reoffending;[74]
[74] Transcript, page 40, lines 19 to 21.
·due to the urgency of the request he was only able to interview the Applicant by telephone on one occasion which lasted for around one hour. Additionally, he spoke with the Applicant’s father via telephone to confirm some of the information provided by the Applicant;[75]
[75] Transcript, page 36, lines 29 to 46.
·in the interests of an accurate assessment, it is preferable to meet with a patient face-to-face and to administer tests. A diagnosis based on clinical assessment alone will only be accurate between a third and a half of the time. Objective testing increases reliability to between 70 and 80 percent.[76] Further the accuracy of the diagnosis depends on the accuracy of the information provided;[77]
[76] Transcript, page 40, lines 33 to 43.
[77] Transcript, page 41, lines 6 to 14
·Dr Palk applied a Psychopathic Checklist that looks for elevated levels of psychopathic features. There was no evidence of elevated psychopathic traits, in other words the Applicant is not a person with entrenched psychopathic desires;[78]
[78] Transcript, page 37.
·the Applicant’s drug use is related, in part, to his anxiety and his poor coping strategies. The Applicant has a predisposition towards anxiety. Dr Palk suspects the Applicant has a generalised anxiety disorder;[79]
·two types of people are attracted to drugs like “ice”: (1) people with attention deficit hyperactivity disorder because ice makes them feel normal; and (2) people who are very anxious because it makes them feel relaxed;[80]
·the Applicant seems to be genuinely remorseful for the harm he has caused his family and others in the community;[81]
·the Applicant is generally a well-adjusted person who functions from a positive effective framework;[82]
·the risk that the Applicant will be involved in offences in the future is most closely linked with his ability to avoid illegal drugs;[83]
·drugs are readily available in the prison system. The Applicant reported that he has not used drugs for two years while in detention, so he is “well and truly detoxicated”;[84]
·the male brain does not fully develop until around 25 although some men can take longer for example into their 30s. With maturity comes a lessening of interest for risk and sensation seeking, in other words people start to “grow up”[85];
·the Applicant is at an age where he is starting to mature, starting to realise the impact and harm his caused his parents in particular and he starting to realise what it is doing to his life;[86]
·the Applicant is at an age where he is ready to live a more settled and law-abiding lifestyle. In his age group, if he has good protective factors in place, he engages in drug rehabilitation and implements relapse prevention including staying away from drug users, then he would be at a low risk of returning to drug use;[87] and
·based on his professional experience working with addiction, Dr Palk’s preference would be for drug rehabilitation programs to last for two years. If a person can abstain for five years Dr Palk would be “fairly confident” that person would not use drugs again. The longer the Applicant can stay in remission, the more chance he has of not returning to drugs.[88]
[79] Transcript, page 42, lines 1 to 8.
[80] Transcript, lines 8 to 15.
[81] Exhibit 11, Report of Dr Palk, paragraph 7.3.
[82] Ibid, paragraph 8.1.
[83] Ibid, paragraph 13.4.
[84] Transcript, page 39, lines 15 to 23.
[85] Transcript, page 39, lines 25 to 33.
[86] Transcript, page 44, lines 7 to 10.
[87] Transcript, page 39, lines 30 to 47; and Exhibit 11, Report of Dr Palk, paragraph 9.1.
[88] Transcript, page 45, lines 1 to 30.

Three things should be noted about Dr Palk’s evidence. First, he stated that accuracy of his expert opinion about the Applicant is limited by his inability to administer tests to him or to interview him face-to-face. Second, Dr Palk thought that the Applicant had not used drugs for two years. That was incorrect. The Applicant used drugs as recently as May 2018. Therefore, the Applicant has not been drug-free for the length of time that Dr Palk would like to see rehabilitation programs run for, much less the five years of sobriety that would lead him to feel “fairly confident” that the Applicant will not use drugs again. Third, Dr Palk’s evidence that persons suffering from anxiety are particularly attracted to MDMA supports the Applicant’s own evidence that he used MDMA to cope with anxiety and panic attacks.
I accept Dr Palk’s evidence that the Applicant he wants to rehabilitate, that he could undergo successful rehabilitation, and he has made a positive start. However, Dr Palk does not opine that the Applicant has been successfully rehabilitated or that there are presently good prospects of him abstaining from illicit drugs if returned to the wider community.
I accept that the Applicant does not want to be imprisoned again or deported, and that he has participated in rehabilitation courses and abstained from drug use while incarcerated. However, he was subject to those same threats (of prison and deportation) once before, and he went on to resume his drug use and re-offend. The evidence before me does not give me comfort that the Applicant is now in a better position to abstain for drugs and crime in the wider community.
The Applicant has been prescribed medication for depression and anxiety, anxiety being one of his risk factors. However, there is no clinical evidence that his anxiety is managed or controlled. Nor is there any independent, expert evidence that, if returned to the wider Australian community, he has good long term prospects of being able to manage his susceptibility to MDMA to cope with known risk factors such as his feelings about his mother’s and grandmother’s medical problems without resorting to illicit drug use.
The Applicant’s offending history demonstrates a strong predilection towards illicit drug use, entrenched recklessness regarding the safety and wellbeing of others in the community and a persistent disregard for the law. The strength of his claimed remorse and determination to change has not been tested in the wider community. Nor is there any expert evidence that he is either rehabilitated or has good prospects of rehabilitation. The Applicant himself concedes that “my path to complete success is a long one, and will take many years to complete...”[89]
[89] Exhibit 4, Statement of Reagan Lee Pitcher, 4 January 2020, paragraph 49.
In these circumstances, I cannot find that the risk of the Applicant re-offending is anything other than substantial.
Conclusion: Primary Consideration A
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to Principle 6.3(4). I find that the nature of the Applicant’s offending conduct to date is very serious, and if he were to re-offend, the harm that would be occasioned to others would be very serious and potentially catastrophic. 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. Considering all of the evidence and each of the relevant factors contained in the Direction, I find that a very heavy level of weight is attributable to this Primary Consideration A in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to1 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 latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant does not have any minor children of his own. In his Personal Details form he did not refer to any minor children.[90] However in his SFIC, he contends that it would be in the best interests of his close family friends’ young daughter, E, for the decision to cancel his visa to be revoked. He contends that despite his incarceration in criminal custody and immigration detention, E continues to draw support from him as if he was a parental figure to her, and that if he is removed to New Zealand, E will no longer be able to draw direct support from him.[91]
[90] Exhibit 1, G-Documents, G12.
[91] Applicant’s SFIC, paragraphs 65 to 68.
E’s mother has provided a letter of support for the Applicant in relation to this application.[92] In it she states that the Applicant and her partner have been best friends for more than 10 years. She says her daughter, E, was born in 2018 and over the following weeks and months the Applicant regularly visited her, her partner and her daughter, and built a relationship that was so strong that they call him “Uncle”. However, she does not assert that the Applicant’s removal from Australia would adversely impact E, nor does she assert that E is financially or emotionally dependent on the Applicant.
[92] Exhibit 1, G-Documents, G-24.
The contentions made in the Applicant’s SFIC and the letter of support from E’s mother’s letter are, in my view, completely undermined by the evidence given by the Applicant under cross-examination in the hearing, which was as follows:
“Mr Hawker:    When was the child born?
Applicant:Which one? There’s more than one child.
Mr Hawker:     No, the child that is named. Can you recall her name?
Applicant:I can’t, sorry. I haven’t seen her in years
Mr Hawker:     You can’t recall the child’s name?
Applicant:I haven’t seen her in years. No.
Mr Hawker:     So you’ve clearly got no meaningful relationship with this child if you can’t recall the name, correct?
Applicant:Incorrect. They want me to be there---
Mr Hawker:     You haven’t seen the child for years and you don’t know the child’s name you can’t seriously be asking this tribunal to accept that you’ve got a meaningful relationship with the child you haven’t seen for years and you don’t know the name?
Applicant:Well they want me to be there.
Mr Hawker:     Your best mate wants you to be in the country, surely, I understand that, but I’m asking about the child. You don’t contribute financially; you don’t know the child’s name. We can establish at least that, correct?
Applicant:Yes”[93]
[93] Transcript, page 25, lines 1 to 20.
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;
·the extent to which the person is likely to play a positive parental role in relation to the child;
·the likely effect that any separation from the person would have on the child;
·whether there are any other people who fill parental roles with the child; and
·any known wishes of the child.
E’s mother says E was born in 2018. The Applicant was incarcerated in late May 2018, and by his own account he has not seen E “in years”. Even assuming E was born at the beginning of 2018, that leaves a window of a maximum of five months that the Applicant could have bonded with E while E was between zero and five months old. It appears that since the Applicant was incarcerated he has not had any contact with E. I am not satisfied that there is a relationship of any substance between the Applicant and this infant whose name the Applicant cannot recall. I have no basis upon which to find that E has been affected by the Applicant’s absence from her life while he has been in detention or that she would be affected by his removal from Australia. Nor do I have any basis on which to conclude that the Applicant would play a parental role in relation to E. Her parents have fulfilled the parental role all her life and I have no reason to think that they will not continue to do that.
In these circumstances, this Primary Consideration B is neutral.
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)[94] 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. I must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[95] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[94] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[95] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
The Evolution of the Australian Community’s “Expectations”
In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501”.[96]
[96] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[97]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[Underlining added]
[97] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
In Afu v Minister for Home Affairs (“Afu”),[98] Justice Bromwich said:
“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 that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[Underlining added]
[98] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[99] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[100] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [101]
[Underlining added]
[99] [2019] FCA 500.
[100] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[101] FYBR, at [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[102]
[102] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[103]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[104]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[105]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[106]
[103] Afu, at [85].
[104] FYBR at [42].
[105] FYBR v Minister for Home Affairs [2019] FCAFC 185, [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[106] Ibid, [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to this Primary Consideration C, it is necessary to have regard to the following factors arising from the evidence:
·the Applicant arrived in Australia on a final basis with his parents on 8 August 1997 when he was three years old;
·he does not have any minor biological children in Australia;
·his first sentencing episode in Australia was in March 2013 when he was 19 years old;
·his offending has seen him before lawful authority in this country on 14 occasions between March 2013 and May 2018, involving the commission of some 43 offences and numerous traffic infringements;
·his criminal and traffic history includes offending that is inherently very serious, having the potential to cause serious, potentially fatal, harm to members of the Australian community;
·his offending is additionally made serious by its persistent nature and the fact that the Applicant continued to offend when he was on probation, subject to a suspended sentence and/or on bail;
·the Applicant resumed offending after having his visa cancelled, having that decision revoked, and having been warned that further offending could lead to his visa being cancelled;
·the Applicant’s drug offending and the drug-driving offences arise from his susceptibility to MDMA which is, at this time, unresolved, thus creating a substantial risk that if he is returned to the wider community he will engage in offending conduct that carries the very real risk of serious, potentially fatal, harm to individuals and the community;
·prior to his first period of incarceration the Applicant had lived in the Australian community for approximately 18 years;[107]
·he was employed for a period before he became addicted to MDMA, and he held employment from January 2017 to the time he was incarcerated for the second time in May 2018. He has an offer of employment from a former employer. He does not claim to have undertaken any voluntary work in the community. Given his relative youth, the Applicant has made minimal positive contributions to the Australian community[108]; and
·The Applicant has parents and a younger brother in Australia. His parents both provided letters of support. The Applicant’s removal from the Australian community will undoubtedly have an adverse impact on his parents, and may have an adverse impact on his brother.[109]
[107] The Direction, paragraph 6.3(5).
[108] The Direction, paragraph 6.3(7).
[109] The Direction, paragraph 6.3(7).
The Applicant has undeniably breached the trust of the Australian community and, given the seriousness of his offending and the risk that he will re-offend, I am satisfied that there is an unacceptable risk that he would again breach the trust of the Australian community if returned to it. I am satisfied that the Australian community would expect that he should not hold a visa.
Conclusion: Primary Consideration C
Taking all relevant matters into account, I find that this Primary Consideration C weighs heavily in favour of non-revocation of the decision under review.
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 has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia continuously since he was three years old, and he is now 26 years old, meaning he has grown up in Australia and spent the vast majority of his life here. He completed his schooling here up to year 10. He also completed a TAFE course, gaining a Certificate 1 and Certificate 2 in Construction. He commenced offending 16 years after moving to Australia.
He claims that he has contributed positively to the community through his employment and social networks. His evidence, supported by his father’s evidence, indicates that he has held employment for significant periods between 2012 and 2018. He has an offer of employment should he be returned to the Australian community. He does not claim to have engaged in any voluntary or community work. He has not elaborated on the contribution he claims to have made through social networks. I am satisfied that he has made a minor contribution to the community. This would attract some weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
In his Personal Details form he claims that his parents and younger brother live in Australia, as do his grandmother, an uncle, and aunt and two cousins. Both his parents and his grandmother provided letters of support to the Applicant. He appears to have positive, close relationships with those family members. He has a friendship of some ten years duration with his best friend and his best friend’s wife, according to the letter of support she provided. Another friend provided a letter of support and so did an employer. While the authors of these letters did not give evidence in the hearing, I am prepared to accept that the Applicant has some significant social ties in Australia. I am of the view that the strength, duration and nature of the Applicant’s family and social links with persons in the Australian community warrant the allocation of a moderate level of weight in favour of revocation pursuant to paragraph 14.2(1)(b) of the Direction.
(c) Impact on Australian business interests

It was contended on behalf of the Applicant that, on the basis that he had an offer of employment in the event that he is returned to the wider community, his removal from Australia would adversely impact on Australian business interests. There is no evidence before the Tribunal that the putative employer has any special need for the Applicant to fulfil a role within the business or that his absence would significantly compromise the delivery of a major project or delivery of an important service in Australia. 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). The Respondent has not called any evidence, nor is there any 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 any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is currently 26 years old and does not claim to suffer from any medical conditions. In terms of his psychological health, he says he has been diagnosed with depression[110], and that he has been prescribed medication known as Zoloft to treat depression and anxiety.[111] The Applicant says these things about impediments he will face if returned to New Zealand:
“Australia is the only home that I know. I have been here since I was about 3½ and have never been back to New Zealand. All my family including Uncles, Aunties, Nana and cousins live here. My grandmother passed away a while ago and even she was buried here in Australia”.[112]
“Homelessness no family no money to survive.”[113]
“… If I’m deported I could never see my Nana before she passes away and I would have to live with that for the rest of my life”.[114]
[110] Exhibit 1, G-Documents, PG-12, page 73.
[111] Ibid.
[112] Exhibit 1, G-Documents, PG-11, page 64.
[113] Exhibit 1, G-Documents, PG 12, page 73.
[114] Ibid, page 74.
It is reasonable to find that the level of medical care and governmental/social support in New Zealand[115] is at or about the same level as that currently available to the Applicant in Australia. Treatment for the condition(s) and access to the medication nominated by the Applicant will both be available to him in New Zealand in the context of what is generally available to other citizens of that country. Thus, the Applicant’s age and state of health, while worthy of being noted, are not factors that attract any measure of weight to this Other Consideration (e).
[115] Section 14.5(1)(c) of the Direction.
There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[116] New Zealand is culturally and linguistically similar to Australia. The Applicant has a TAFE qualification in Construction, in his personal details form he claims to have worked in “Demolition” and “mowing parks” [117], and based on the positive letter of support provided by one of his former employers it appears that that employer could be prepared to provide a positive reference for him. He therefore has some prospects of employment in New Zealand. To the extent that the Applicant may face some difficulty in re-establishing himself in New Zealand, this would only present as a short-term hardship and would not preclude his successful re-settlement there.[118]
[116] Section 14.5(1)(b) of the Direction.
[117] Exhibit 1, G-Documents, PG-12, page 72.
[118] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
Considering all of these matters, I am of the view that this Other Consideration (e) weighs 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 moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B is neutral; and
·To the extent that 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.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
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 133 (one-hundred and thirty-three) paragraphs are a true copy of the reasons for the decision herein of Member Arends.

.....................................[sgd]...................................
Associate
Dated: 3 March 2020

Date of hearing: 14 February 2020

Solicitors for the Applicant: Mr Tanguy Mwilambwe

GTC Lawyers

Solicitors for the Respondent: Mr Matthew Hawker

Sparke Helmore Lawyers

[2020] AATA 497

3 March 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Remedies

Date of hearing:	14 February 2020
Solicitors for the Applicant:	Mr Tanguy Mwilambwe
GTC Lawyers
Solicitors for the Respondent:	Mr Matthew Hawker
Sparke Helmore Lawyers