Potae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 3731
•4 November 2022
Potae and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3731 (4 November 2022)
Division:GENERAL DIVISION
File Number: 2022/6734
Re:Mr Rawiri te hau Potae
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:4 November 2022
Place:Sydney
The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 12 August 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
.....................................[sgd]...................................
Emeritus Professor P A Fairall, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Migration Act 1958, subsection 501CA(4) – Direction No. 90 – drug related offending – drug supply – significant period of stability between offending – protection of the Australian community – expectations of the Australian community – best interests of children – links to the Australian community – impediments to relocation –decision set aside and substituted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth) s 5G, 499, 500, 501, 501CA
CASES
De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 539
Sach and Minister for Home Affairs (Migration) [2019] AATA 5173
Leau and Minister for Home Affairs (Migration) [2019] AATA 843
McCutcheon and Minister for Home Affairs (Migration) [2019] AATA 932
RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076
Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361Puni and Minister for Home Affairs (Migration) [2019] AATA 3943
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
4 November 2022
INTRODUCTION
1. Mr Rawiri Potae (the applicant) is a New Zealand citizen. He has lived in Australia for 27 years. He suffers from Type 1 diabetes, and is a long term user of marijuana and methylamphetamines.[1] When uncontrolled, his addiction has led to social disruption and family breakdown.
[1] G13, 157.
2. His first criminal conviction (minor possession) did not occur until some 15 years after arriving in Australia,[2] when he was arrested several times,[3] and spent just under 3 months in prison for property and domestic offences.[4] In 2013, he voluntarily entered a residential rehabilitation program in Canberra.
[2] MR, G21, 181.
[3] To be precise, on 7 occasions: see TB 160.
[4] Between 28 October 2012 and 22 January 2013: see Department of Corrective Services, reception record: TB, 159.
3. After a significant period of stability between 2012 and 2020, he was taken into custody on 23 July 2021 for selling drugs. He was convicted on 5 October 2021 by the Local Court of NSW on one count of persistent drug supply, and one count of deemed supply of a prohibited drug, namely methylamphetamine (MDMA).[5] He was sentenced to an aggregate term of 15 months imprisonment with a non-parole period of 6 months. He was released on parole on 22 January 2022, having spent just 6 months in prison.[6] The relatively short non-parole period reflected a finding of special circumstances.[7] He was then transferred to the Villawood Immigration Detention Centre (VIDC), where he resided at the time of the hearing before this Tribunal.
[5] TB, 13-14.
[6] TB, 159.
[7] G6, 49.
4. His offending history in Australia is contained in these quite short periods. In total, he has spent approximately 9 months in prison and an equal time in immigration detention.
MANDATORY VISA CANCELLATION
5. A person sentenced to a term of imprisonment of 12 months or more has a ‘substantial criminal record’ by reason of paragraph 501(7)(c) of the Migration Act 1958 (Cth) (‘the Act’) and therefore fails the character test by reason of paragraph 501(6)(a). On 4 November 2021, the Minister cancelled the applicant’s visa, as he was required to do by subsection 501(3A). On 5 November 2021, the applicant applied to the Minister, in accordance with an invitation to do so, to consider whether to revoke the decision to cancel his visa.[8]
[8] G2, 16.
6. The applicant provided a statement, in which he said:
I, [RP], respectfully request a revocation of my visa because all my immediate family live here in [A]ustralia[.] [A]ll of my children and grandchildren will be denied a father and grandfather who will be supporting them if allowed to stay in every way possible. My children still need a father in their lives as I need them in mine. I don’t have any support or friends and family in [New Zealand]. I moved to [A]ustralia to escape a traumatic childhood at the hands of my mother and father and have had no contact in all these years other than when my father died and still have no contact with my mother. Unfortunately, I got myself in strife here and did not recieve [sic] the help I needed to deal with my problems. But now I have my family to support me and have done some courses whilst incarcerated to change my life for the better. [9]
[9] G11, 143.
7. On 12 August 2022, a delegate of the Minister declined to revoke the cancellation of his visa, a decision conveyed to him by letter dated 15 August 2022.[10] On 19 August 2022, the applicant applied to this Tribunal for review of the decision not to revoke the cancellation of his visa.[11] He stated:
I have been in Australia for 27 years and consider this place home now. I have children and grandchildren and a wife that all reside here. I have worked in Australia for most of my life and have contributed to this great nation. I have made mistakes which i am extremely remorseful for and take full responsibility for my actions. I wish for this decision to be reviewed and looked at again as i feel that it was the wrong choice. I am not the same person that use to be as I have had time to reflect on my past behavior and actions and have taken steps to self improve.[12]
[10] G2, 8.
[11] As provided for by paragraph 500(1)(ba) of the Act. G1, 1.
[12] G1, 4.
8. The application was heard by teleconference on 19 and 20 October 2022. A solicitor from the Australian Government Solicitor, Mr R. Harvey, appeared for the Respondent. The applicant was not legally represented at the hearing but appeared by video link from the Villawood Immigration Detention Centre (VIDC).
FINDING ON THE CHARACTER TEST
9. The applicant does not dispute that he was, at the time of visa cancellation, serving a sentence of 15 months imprisonment, on a full-time basis, in Clarence Correctional Centre in New South Wales (NSW), and that he fails the character test.[13] According to the National Criminal History Check, on 5 October 2021 the applicant was sentenced in the Central Local Court to an aggregate sentence of 15 months imprisonment with a non-parole period of 6 months on two counts of drug supply.[14]
[13] G2, 16.
[14] G3, 35; TB14.
10. I am satisfied that the applicant fails the character test.
THE SOLE ISSUE
11. Subsection 501CA(4) of the Act provides:
(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.
12. In determining whether the Tribunal can be satisfied that ‘there is another reason why the original decision should be revoked’, pursuant to s 501CA(4)(b)(ii) of the Act, the Tribunal must consider the legal consequences of the decision.[15] Having regard to sections 189, 196, and 198 of the Act, the legal consequence of not revoking the cancellation of the applicant’s visa is that he will be liable to be removed to New Zealand and be detained in the meantime.
[15] DLJ18 v Minister for Home Affairs [2018] FCA 1650 at [5] (Flick J) and [28] (Bromberg J).
13. With this in mind, I turn to the question of whether there is ‘another reason’ why the original decision to cancel his visa should be revoked.
The Discretion Under Subsection 501CA(4)
14. In exercising the discretion under subsection 501CA(4), on the basis of paragraph 4(b)(ii), the Tribunal is required by subsection 499(2A) to comply with Direction No. 90 (the Direction).[16]
[16] Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
15. Part 1 of the Direction sets out certain formal matters and also, importantly, the principles that provide the framework within which decision-makers should approach their task. Paragraph 5.2 sets out five principles:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community. (emphasis added)
16. Part 2 of the Direction is entitled Exercising the Direction. There are four primary considerations (paragraph 8), and five ‘other’ considerations (paragraph 9) that must be taken into account ‘where relevant to the decision’. Primary considerations relate to the protection of the community from criminal and other serious conduct, the issue of family violence, the best interests of minor children in Australia, and the expectations of the Australian community. Relevantly, ‘other considerations’ include (but are not limited to) the extent of impediments if removed, the impact on victims, and links to the Australian community.
17. The Direction also contains principles and rules relating to the weighting of the various considerations. For example, primary considerations should generally be given greater weight than the other considerations; and one or more primary considerations may outweigh other primary considerations. Although the Direction does not say so explicitly, it has been held that in particular circumstances a non-primary consideration may be dominant in the case.[17]
Primary Considerations
[17] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Protection of the Australian community: PC1
18. Paragraph 8.1(1) states that decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct. Decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, and will not cause or threaten harm to individuals or the Australian community.
19. Paragraph 8.1(2) provides that decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the non-citizen’s conduct to date: paragraph 8.1(2)(a)
20. The applicant’s record is contained in the Nationally Coordinated Criminal History report prepared by the Australian Criminal Intelligence Commission.[18] His criminal history in New Zealand is set out in the Appendix.[19]
[18] G3, 34.
[19] G4, 38
21. His Australian offending is concentrated within two short periods. In the first, between January 2011 and October 2012, he was convicted of contravening a prohibition contained within an apprehended violence order (AVO), driving under the influence of drugs, dishonestly obtaining property, possessing false ID information, possession of stolen goods, common assault (DV), and failing to appear. His record for the first cluster of offences ten years ago is as follows:
Type Offence date Charge Number Outcome
Contravene AVO 17/01/2011 0107 9 month Bond
Drug driving 09/04/2011 7265 $300 fine
Dishonestly obtain 01/03/2012 8875 18 month bond
Possess ID info 01/03/2012 8875 18 month bond
Stolen goods 05/07/2012 5518 6 months reduced to 3 months on appeal
Goods in possession 17/10/2012 9930 18 month bond
Common assault DV 20/11/2011 9856 7 month suspended
Contravene prohibition 20/11/2011 9856 7 months suspended
Fail Appear in accordance with bail undertaking 03/04/2012 9856 7 months suspended
22. During 2011-2012, he was in a relationship with a woman (EC). This will be discussed more fully below under the heading of Family Violence. The DV offences (contravene AVO, assault) arose in the context of that relationship. The call up for those offences occurred because he had goods in his possession that were suspected of being stolen. This was unrelated to the DV offences.[20]
[20] As acknowledged by the Respondent, see RSFIC, 4, fn 1.
23. On 26 October 2012, he was sentenced for the goods in custody and DV offences to 7 months’ imprisonment with a 6 month non-parole period.[21] This was reduced on appeal to a non-parole period of 3 months, and he was released to parole on 22 January 2013. The order expired on 23 May 2013.[22]
[21] G7, 51.
[22] TB, 156.
24. During the second period, from September 2020 to July 2021, he was convicted of minor possession, three separate counts of drug driving, which were dealt with by way of fines and licence disqualification, and the two drug supply offences, for which he received an aggregate sentence of 15 months imprisonment with a non-parole period of 6 months. The 15 month sentence led to the cancellation of his visa.
25. The applicant’s conviction record for the second cluster of offences is as follows:
Type Offence date Charge Number Outcome
Drug driving 28/09/2020 7488 Conditional release Order without conviction 12 months
Drug driving (ICE) 17/10/2020 1820 Conditional release Order without conviction 18 months
Possess drug (dope) 01/02/2021 6798 $100 fine
Drug driving – 2 off 27/01/2021 7372 $600 fine, 4 months disqualification
Supply 23/07/2021 5326 15 months, non-parole 6 months
Supply 30/06-7/07/2021 5326 15 months, non-parole 6 months
Assessing the mature and seriousness of his criminal record
26. Paragraph 8.1.1 of the Direction outlines certain factors a decision-maker must have regard to in considering the nature and seriousness of the applicant’s criminal offending. I have taken account of these factors in the following narrative.
27. Given the concentrated nature of the applicant’s most recent offending, it is useful to refer to the sentencing magistrate’s comments at length.[23]
HER HONOUR: Mr Potae has pleaded guilty and it is accepted at the earliest opportunity, to two offences. The first is an offence of supplying a prohibited drug on and ongoing basis. That offence is made out if it is three or more occasions in a period of 30 days are made out and in this particular matter there were 16 separate occasion between 30 June and 17 July this year when Mr Potae supplied methamphetamine to a number of different people. The supplies averaged about 2 grams, although they ranged in quantity from I think 0.4 of a gram might have been the lowest, up to 7 grams as the highest individual quantity.
[23] G6, 46-50.
28. The total amount supplied in relation to the ongoing supply offence was 33.95 grams, 25 grams more than the indictable quantity. The number of occasions were five times the number required for the offence to be made. The learned magistrate considered that this fell in the midrange of objective seriousness. When urged to consider imposing an intensive corrections order instead of a custodial sentence, she said:
I do note though that the ongoing supply on 16 occasions in what I would regard as above street level quantities in my view objectively is so serious that imposing an intensive corrections order would not adequately reflect that. I do consider that there are special circumstances. I do consider that it is appropriate to find special circumstances and make a very significant adjustment in the non-parole period ratio with the total sentence so that Mr Potae will have a significant period on parole when he can be supervised subject to that supervision plan.
29. With regard to the single count of supplying methamphetamine, her Honour noted that the deemed supply offence covered the full range of quantities between not less than 25 grams and up to 1,000 grams. The applicant was arrested with 25 grams of methamphetamine. Her Honour considered that this fell ‘lower in the range of objective seriousness’.
30. With regard to his motivations for selling drugs, the magistrate observed:
[M]r Potae was very much in business supplying drugs in those types of quantities to other people. There was discussion in the facts about the price and clearly Mr Potae was very much in the sense a middle man in the drug supply chain, providing drugs to other people who may have been using them themselves, but may also have been supplying them at a street level to other drug users …
In my view it is a proper finding that in this particular matter this offences (sic) was committed for financial gain, although part of the finances that he gained were used to buy his own drugs, it wasn't a situation where he was funding a lavish lifestyle, but it was clearly a situation where drug dealing was something that Mr Potae engaged in in order to pay for his day to day expenses which included the use of ice himself. He told the author of the sentencing assessment report that he had been smoking approximately 2 grams of ice a day in addition to consuming GHB and alcohol. No doubt that was quite an expensive habit noting what he was telling people about the price of those drugs in the course of his dealing as shown on these intercepts.
31. The learned magistrate noted his age, the significant gap since his first contact with the criminal justice system over a short period in 2010-2012, and that he did not have any prior drug supply matters on his record. However, by reason of the earlier offending, he was not entitled to the benefit of prior good character. She also noted the positive references he had provided from his family and extended family including his estranged wife, who made reference to his childhood trauma and the possibility of a link with his drug use, and said that he had expressed remorse and shame to each of his children and was now drug free. She accepted that when he committed the offences he was himself a user of methamphetamine. She also noted that he had previously managed to engage in rehabilitation successfully and not offend over a period of many years. He pleaded guilty at the earliest possible opportunity and was entitled to a full 25 percent discount on the sentence that would otherwise have been imposed.
32. The learned magistrate imposed an indicative sentence of 14 months imprisonment for the ongoing supply offence and 9 months for the deemed supply. She imposed an overall aggregate sentence of 15 months imprisonment.
33. With regard to the non-parole period, the learned magistrate found special circumstances and fixed a non-parole period of 6 months, expiring on 22 January 2022.
34. I also note that his criminal record relating to this second period includes three convictions for drug driving committed on 28 September 2020, 17 October 2020, and 27 January 2021, and a minor drug possession charge committed on 1 February 2020.
35. There is no doubt that the drug supply offences should be regarded as very serious. I note that the learned magistrate said:
Of course drug supply even by somebody who is themselves a drug user is something which simply perpetuates the harm that is caused by the use of those illicit drugs in the community, particularly when they have to be bought at prices that are determined by criminals and I do consider that these are matters which do require some level of both personal and general deterrents to be taken into account in determining what is an appropriate sentence.
36. I also note that applicant’s criminal record provided by the New Zealand authorities spanning a number of years.[24]
[24] G4, G5.
37. I note that on multiple occasions he failed to disclose his criminal history in New Zealand on his arrival card when he entered Australia.[25] However, in his most recent arrival on 25 March 2016, he ticked the box which indicated that he had convictions.[26] He told the Tribunal that he was returning to Australia after an extended stay in Thailand, and that his head was clear. He did not want to conceal the truth from the immigration authorities as he had done on previous occasions. On those occasions, he feared that if he told the truth about his New Zealand convictions he would be denied entry. When he arrived he was interviewed at some length by Australian Border Force officials but was granted a visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: Paragraph 8.1(2)(b)
[25] G2, 173, 178.
[26] TB 226.
38. The Tribunal is required to take into account under paragraph 8.1.2(1) the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
39. Under paragraph 8.1.2(2), in assessing the risk that may be posed by the applicant to the Australian community, the Tribunal must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Paragraph 8.1.2(2)(a): The nature of harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct.
40. In terms of paragraph 8.1.1(2)(a), any return to drug dealing will expose the applicant’s family and the Australian community to considerable harm.
41. In terms of paragraph 8.1.2(2)(b), I consider the likelihood of the applicant engaging in further criminal or serious conduct to be significant.
42. In assessing the likelihood of the applicant engaging in further criminal acts or other serious conduct, I am required to take into account information and evidence on the risk of re-offending, including evidence of rehabilitation achieved by the time of the decision. In making an assessment about risk, the Tribunal is required to make an informed judgment taking into account professional assessments and reports.
43. I have taken account of the 2007 ICAC Report, which refers to some corrupt activities involving the applicant and others relating to the fraudulent issuing of drivers licenses. However, I accept that no charges were laid against the applicant and the report is now 15 years old.[27]
[27] Report on an investigation into corrupt issuing of drivers licences: Independent Commission against Corruption (ICAC), September 2007: G10, 75.
44. I note that the applicant entered a residential facility in Canberra when his parole ended in 2013, but the Tribunal was provided with little substance to support the nature and efficacy of the program. Clearly, whatever beneficial impact was felt by the program, it was largely spent when he started selling drugs nine years later. His relapse in 2021 into the nefarious world of drug dealing is a matter of serious concern.
45. I note the Risk Mitigation Plan developed by Corrective Service NSW, and the assessments made on 11 January 2021.[28] The assessment is heavily reliant upon the applicant receiving ongoing support from his family in general and his wife Ms Lisa Potae in particular. The Report notes that:
This collated plan between Parole and Community appears to mitigate risks for Mr Potae should he be granted an appeal to remain in Australia upon release and as such will be utilised to manage his SPO.[29]
[28] TB 181.
[29] TB 189.
46. However, the possibility of recidivism can never be excluded and I would assess the risk as significant. Despite the confined nature of his convictions, he engaged in selling drugs on multiple occasions and was convicted for persistent supply. He did so either because as recently as 2021 he saw no harm in supplying recreational drugs to the community, was coerced to do so, (of which there is no direct evidence before the Tribunal) or was indifferent to the danger to the community. He told the Tribunal that he was now more aware of the harm that drugs do. However, as a person with a well-developed substance abuse dependency, it is hard to see what might break the cycle, other than strength of character and a strong sense of duty to his family. Unfortunately, he has let them down in the past and a realistic assessment is that he may do so in the future.
47. Although his drug offending is relatively confined and might reasonably be regarded as on the light side, especially in view of the relatively light or short sentences actually served by the applicant, the Tribunal cannot close its eyes to a significant risk of relapse and recidivism. I do however take account of the salutary effects of imprisonment and visa cancellation, and the impact upon his family, which may serve to moderate the risk somewhat.
48. Nevertheless, the risk of recidivism is real. I therefore consider that the safety of the community weighs heavily against the applicant.
49. In the Respondent’s SOFIC this consideration is weighed ‘significantly’ against revocation of the cancellation decision,[30] but in oral submission the Respondent contended that the weight was heavy. I agree.
[30] RSFIC [51].
Conclusion on PC1
50. PC1 weighs heavily against revocation of the mandatory cancellation.
Family Violence: PC2
51. The applicant was in an intimate relationship with a woman (EC) for a few turbulent years prior to 2012 and they had a child. They cohabited and he accepted that the child was his although he was not sure. The relationship appears to have been toxic and damaging to both parties. He has had no ongoing contact with this woman or with the child after 2012.
52. On 26 October 2012, the applicant was sentenced in the Local Court of NSW for assault (DV), and contravening an AVO.[31] He was given a 7 month suspended sentence. The sentencing remarks pertaining to these incidents are not before the Tribunal.
[31] G6, 51.
53. The applicant says that the extent of any violence towards this woman was exaggerated by her. He said that some of the alleged incidents did not occur and that she used the police as a means of getting to him. According to the police notes, she lied about at least one incident involving an alleged robbery.
54. I note the following exchange:
MR HARVEY: Mr Potae, did you plead guilty to these offences or did you contest (indistinct) this is for September - - -
APPLICANT: I think I contested them. If you go to page 63, right on the bottom paragraph, this was just another occasion of Eliza’s behaviour and her charges that she made against me, you will see down the bottom there, she didn’t get her - I will put it this way, we were both drug addicts, ice addicts, and if I never gave her ice when she wanted to, she would go into her berserk rage and start doing things like this. She made numerous calls to the police on me for false statements and this one down here (indistinct). In court, she admitted to making up the story one of the times and this was another one down here when she’s done the same thing, she made a statement at the police station, stating that no robbery occurred, I didn’t rob her, and she lied about the whole thing. It was all about her not getting her way and she didn’t get her way then bang, I copped it one way or another off her.[32]
[32] Transcript of Proceedings (19 October 2022) 30.
55. The Respondent contends that the conduct of the applicant directed at his former partner amounts to family violence. The Direction defines family violence as:
[F]amily violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
56. I accept that the woman was part of his family and that the relationship was family-like.
57. The task of the Tribunal is not assisted on this issue by the Respondent’s Statement of Facts, Issues and Contention (RSFIC), which contains verbatim extracts from the police notes, asserted as matters of fact. The police notes contain for the most part statements by the police as to what they understood the alleged victim to be reporting to them.[33] It is not the case that everything contained in the police notes must be accepted without qualification as a hard fact nor, in my respectful opinion, should be it be stated as a blunt matter of fact in the written submissions.
[33] This is especially important in a case such as the present where the alleged victim made it clear that she did not wish to press charges or an AVO, and it appears that the decision to impose an AVO was made by the police unilaterally. As to the ‘statement’ by ‘Ms Potae’ that she had lied about the robbery and it had never occurred, I cannot find a reference by the police to this statement at the page reference given in the SOFIC (GD 63-64) or anywhere else in the materials.
58. I also note that the written contentions identify the wrong person as the victim of the 2011 offending. The name of the alleged victim of the 2011 offending is redacted in the police notes, but contrary to what is stated in the RSFIC, the person referred to in the police notes was not Ms Lisa Potae, who gave evidence to the Tribunal, but Ms EC, who did not.
59. The applicant has not been convicted of any offence against his wife, Ms Lisa Potae. He did however admit to having a row with her in 2014 and grabbing her telephone. They were in New Zealand attending his father’s funeral. The incident was sufficiently serious to cause her to make a complaint to the police in Sutherland when they returned to Australia.[34] She was encouraged by the police to take out an AVO but declined to do so. She told the Tribunal that apart from this incident in 2014, the applicant had not been physically violence towards her or the children.
[34] TB 87, 88.
60. The Respondent contended that this primary consideration plainly weighs in favour of non-revocation of the cancellation decision.[35]
[35] RSFIC [54]-[55].
61. The Respondent conceded that the offending was more than 10 years old, but considered that there was no evidence of the extent to which the applicant accepts his responsibility for this offending or the extent to which he understands the impact of his behaviour on his ex-wife and others. There is also no evidence as to what, if any efforts, the applicant has taken to address the factors that led to this offending.
62. However, having heard from the applicant and his wife and two of his children, I do not agree that PC2 ‘plainly weighs’ against revocation. I note the following exchange during final submissions:
SENIOR MEMBER: But, as you say, it’s a long time ago. Redemption is possible in this as are all other matters involving human affairs and 10 years is a significant amount of time and there’s been no suggestion from his wife, his current wife - admittedly they’re not living together but there’s been no suggestion of ongoing violence.
MR HARVEY: Absolutely it’s a point I utterly agree with, Senior Member. I would only say this: Ms Potae did give evidence yesterday that when Mr Potae is clean he’s great. He’s a loving father. When he’s not clean, it’s a different issue. When was on ice, when he was using, it’s a different issue. I think if you can accept that his risk of not staying clean, of going back to drug use upon release is a real one, then that also raises his risk of reoffending across the board and also his risk of reoffending for the family violence type offences, albeit that these ones in particular, the convictions were some years ago.[36]
[36] Transcript of Proceedings (20 October 2022) 76.
63. I accept his wife’s firm evidence to the Tribunal that the applicant had not been violent toward her or the children, and I note that a considerable time has elapsed since the earlier offending against another woman in 2011-12.
Conclusion on PC2
64. I consider that this consideration is neutral.
Best interests of minor children in Australia affected by the decision: PC3
65. The Tribunal has identified three minor children who may be affected by a decision to remove the applicant from Australia, his 15 year old daughter SP (who is also Lisa’s child);[37] his seven year old grandson RP (KP’s son);[38] and his infant granddaughter (TP’s daughter).[39]
[37] G12, 150.
[38] G12, 152.
[39] Transcript of Proceedings (19 October 2022).
66. Paragraph 8.3 of the Direction, which states:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
67. SP provided a written letter to the Tribunal. Her letter included the following statements:
I need my Dad in my life. My mum needs my Dad to help raise and support me, my siblings and niece and nephew ...
I know my Dad has made lots of mistakes but he has always shown me how much he loves me. He has always supported me and my siblings. My Dad has always helped my Mum support and raise us.
I need my Dad to help guide me through my last years of high school and be there to see me graduate like he has for all my siblings. I need my Dad to be at my weekend sports like he has always been. I need my Dad to see me at my school formal. I need my Dad to guide me in choosing the right career. I need my Dad to walk me down the aisle when I marry one day. I need my Dad to be an involved Grandfather to my future children …
I need my Dad. Please don’t send him back to New Zealand. Please give him a chance to prove he has changed and will not make the mistakes he has made in the past ...
68. In weighing this consideration, there are two counterbalancing forces. On one hand, as Mr Harvey conceded, Mr Potae appears to be a committed, dutiful and loving father when he is not using drugs, and sadly, an unworthy father when he is using.
69. He is unlikely to play a positive role in the children’s lives if he continues to use drugs and alcohol and if he continues to offend.
70. If removed, the impact upon his grandson RP is likely to be substantial, because they have a well-formed relationship. The impact upon his infant granddaughter must be assessed as low to non-existent. The heaviest blow would fall on his daughter SP. They have spent a good deal of time together and they appear to have a strong bond.
71. Each of these minor children have a strong mother as caregiver. The Tribunal heard from Lisa, KP and TP. The Tribunal formed a positive view about each of these women. In short, they would be considerably assisted by the Applicant’s active participation, while not on drugs, with the children, and no doubt would be profoundly disappointed were he to start using again.
72. The Respondent contends that this primary consideration weighs in favour of revocation of the cancellation decision.[40] I agree.
[40] SFIC [58].
73. I find that PC3 weighs mildly in favour of revocation of the cancellation decision.
The expectations of the Australian community: PC4
74. Paragraph 8.4 of the Direction provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
…
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
(emphasis added)
75. The Respondent contends, consistently with the Direction, that crimes of a violent nature against women should be regarded as very serious. I have considered above the evidence as to his violence against EC, and have found the weight of his interactions with EC to be of neutral weight at this point in time. The applicant’s separated wife said that neither she nor the children feared her and with the exception of one incident, he was not physically violent towards her or them.
76. It is well established that this consideration cannot weigh in favour of any applicant; the degree to which it weighs against him or her in any particular case varies according to the seriousness of their offending.[41] Taking into account the serious nature of dealing in drugs including methylamphetamines, I find that PC4 weighs firmly against him.
[41] FYBR v Minister for Home Affairs [2019] FCAFC 185.
Other Considerations
77. Other considerations identified in the Direction relate to:
(a)International non-refoulement obligations: OC1
(b)Extent of impediments if removed: OC2
(c)Impact on victims: OC3
(d)Links to the Australian community OC4
(i)Strength, nature and duration of ties: OC4.1
(ii)Impact on Australian business interests: OC4.2
International non-refoulement obligations: OC1
78. This consideration has no application to this matter.
Extent of impediments if removed: OC2
79. Paragraph 9.2 of the Direction states:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
80. As noted above, the applicant has lived in Australia for 27 years. He was 31 years old when he arrived from New Zealand.[42]
[42] GD 181.
81. The applicant suffers from substance use addiction (mostly marijuana and methylamphetamines). He told a corrections officer that his sister died in 2003-4 at the age of 36 from an asthma attack. She was apparently a drug user with a criminal record. He has no contact with his brother, who also has a criminal record. He came to Australia to get away from members of his family who were associating with bikie gangs.[43] His Australian family, including his wife, sister-in-law and daughters, see a link between his drug dependence and his unhappy life story.
[43] TB 116.
82. In terms of his physical health, it is accepted by the Respondent that he suffers from Type 1 diabetes. However, he pointed out that this was not an affliction of the kind that only Australia could provide appropriate treatment. I accept this, but the way in which that condition may present additional difficulties for him in settling in cannot be ignored.
83. The question is as to the extent of any impediments that he may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
84. Relocation to New Zealand will present significant challenges for the applicant. He does not have happy memories there. His mother sent him to live with another family when he was nine, telling him that he was going on holiday. He says that he was physically and emotionally abused as a child. His father died in 2012. He is estranged from his birth mother. He has no contact with his brother. In terms of supports available to him in establishing himself and maintaining basic living standards, they would appear to be minimal.
85. Nevertheless, New Zealand is neither distant nor dangerous, although perhaps for a person with his background that may need to be somewhat qualified. With a proclivity for drugs and a history of dealing, he may be preyed upon by unscrupulous criminal gangs. He would not be a stranger to such experiences, which have occurred in Australia.[44] The fact that this potential danger may exist on both sides of the Tasman tends to neuter this element somewhat.
[44] TB 87, 88.
86. The Respondent contends that this consideration should have limited weight in favour of revocation of the cancellation decision.[45] The Respondent concedes that his resettlement may involve personal hardship given his extended period of residence in Australia, his lack of familial and social support in New Zealand, and his separation from his immediate and extended family in Australia. But these obstacles are not insurmountable. The applicant has no major health issues, and no language or cultural barriers preventing him from returning to New Zealand.
[45] RSFIC [67] – [68].
87. I do not agree that the applicant has no major health issues or that only idiosyncratic conditions which can only be treated in Australia (if such exist) should be treated as significant. I consider that OC2 weighs firmly in favour of revoking the mandatory cancellation decision.
Impact on victims: OC3
88. The Direction provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
89. There is no evidence before the Tribunal relating to his consideration, which is therefore neutral.
Links to the Australian community, including:
(i) Strength, nature and duration of ties to Australia: OC4.1
90. Paragraph 9.4.1 of the Direction states:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
91. The applicant has a wide family circle in Australia, as described in his Personal Circumstances form.[46] I note that according to information he provided to the NSW Department of Corrective Service in 2012, he had fathered eight children (one being still-born).[47] Four of his adult children (KP, TP, GP, and WP) provided letters of support to the Tribunal, as did his minor daughter SP. I have read each of these letters. I accept their evidence.
[46] G12, 152.
[47] TB 116.
92. The Tribunal is required to consider ‘any impact’ upon these family members, who are all Australian citizens. Unlike PC3, where the Tribunal is concerned to identify the ‘best interests’ of minor children, the present considerations concern the impact upon the relevant individuals. It is a subtly different question.
93. I consider that the impact upon these family members will be profound if he is removed from Australia at this time and without the chance to show that he has redeemed himself. His family will have a strong sense of grief and loss and will be left hanging with an unanswered question. The worry they will have for him living on his own in New Zealand is a significant factor.
94. I note that his sister-in-law, Ms TH also provided a letter of support. She is a full-time employee with NSW Health and stated:
Rawiri Potae is my brother-in-law and I have known him for 25 years. My sister Lisa Potae met him at work and they married a few years later. He was a single father of 4 children and his sole purpose was to care and support his children, they were his life. After some time his children moved in full time with them and my sister loved and cared for them as her own. Rawiri and my sister had 2 daughters together and they had all lived happily as a blended family for many years. Rawiri was a very hardworking Husband and Father, he worked 6 days a week to provide financially for his family every week.
Rawiri was a proud and fun-loving man and his whole life was devoted to his family. He was a big part of our family and was and still is loved dearly by us all. He supported our family in our time of need without hesitation.
95. The applicant first arrived in Australia on 29 September 1994.[48]
[48] G21, 181.
96. I noted above that his first criminal conviction (minor possession) did not occur until some 15 years after arriving in Australia, and for most of this time he appears to have been gainfully employed.[49] He has in fact had a solid employment record despite his susceptibility to substance use.
[49] MR, G21, 181.
97. He states that he has only been back to New Zealand twice since his first arrival 27 years ago.[50]. He spent 19 months overseas (15 June 2014 – 25 March 2016) and has had brief trips away in 2004 (twice), 2006, 2002, 2001, 2000 (twice).
[50] G13, 158.
98. The applicant has lived in Australia for 27 years and by any standard would be regarded as a long-term resident of Australia. This fact alone does not protect a non-citizen from mandatory visa cancellation as shown by numerous Tribunal decisions.[51]
[51] McCutcheon and Minister for Home Affairs (Migration) [2019] AATA 932 (McCutcheon) per Groom SM; RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076 (RGYW) per Member Parker; Leau and Minister for Home Affairs (Migration) [2019] AATA 843 (Leau) per Cowdroy DP; Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361, (Seddon) per Nikolic SM; Puni and Minister for Home Affairs (Migration) [2019] AATA 3943 (Puni) per Nikolic SM. De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392 (De Ruyter) per Nikolic SM. These cases are briefly summarised in the Appendix.
99. In McCutcheon,[52] the applicant was a 51 year old citizen of the United Kingdom who migrated to Australia in 1978 aged 11. His offending included multiple convictions for rape as well as a conviction for false imprisonment. He had a significant record of driving offences including seven sentences for driving without a licence and five drink driving sentences. In addition, he had committed a number of broader offences including hindering police, providing a false name to police (multiple counts), disorderly conduct (multiple counts), behave in an offensive manner and a minor drug offence.
[52] McCutcheon and Minister for Home Affairs (Migration) [2019] AATA 932 (McCutcheon) per Groom SM.
100. In RGYW,[53] the applicant was a 42 year old citizen of New Zealand who came to Australia at the age of 5 and had lived here for 37 years with only two short absences. He had been convicted for approximately 60 offences, 30 of which he was sentenced to terms of imprisonment, including at least one which was longer than 12 months.
[53] RGYW, per Member Parker.
101. In Leau,[54] the applicant was a 35 year old citizen of New Zealand who first arrived with his mother at the age of 8, and had lived in Australia for 27 years. His offending as an adult included assaults, possessing a prohibited weapon without a permit, and aggravated break and enter and commit serious indictable offence for which he received a sentence of three years and six months imprisonment.
[54] Leau and Minister for Home Affairs (Migration) [2019] AATA 843.
102. In Seddon,[55] the applicant was a 34 year old citizen of New Zealand, who came to Australia at the age of 11, and had lived permanently in Australia for 23 years. He was convicted of multiple crimes since arriving in Australia, including violent offences such as robbery in company, resist or hinder police officer in the execution of duty, aggravated assault (no weapon) against child or spouse, make threat to kill, and assault.
[55] Seddon and Minister for Home Affairs (Migration) [2019] AATA 4361.
103. In Puni,[56] the applicant was a 33 year old citizen of New Zealand, who came to Australia at the age of 15, and had lived permanently in Australia for 18 years. He was found guilty or convicted of at least 88 criminal offences, including: violent offences; offences against police; dishonesty offences; a threatening offence (make threat to kill); property offences; and drug offences. He utilised a high level of violence and received a relatively lengthy sentence of five years and four months imprisonment for his most recent offending, reflecting the objective seriousness of his conduct, and had reoffended despite multiple sentences of imprisonment, the setting aside of a previous visa cancellation in 2005, and a formal warning from immigration authorities in 2008.
[56] Puni and Minister for Home Affairs (Migration) [2019] AATA 3943.
104. In De Ruyter,[57] the applicant was a 29 year old citizen of New Zealand who came to Australia at the age of 10, and had resided permanently in Australia for 18 years. His offending was compressed into a relatively short period of just over a year and included offences ranging across the criminal calendar including burglary, assault occasioning bodily harm whilst armed/in company; common assault, break and enter premises and commit indictable offence, enter premises and commit indictable offence; enter premises with intent; stealing, wilful damage, unlawful possession of weapons category d/h/r weapon - short firearm in public; unlawful use of a motor vehicles; receiving tainted property; dangerous operation of a vehicle, possess weapon with altered identification marks; possess dangerous drug, and riot or mutiny endangered the security of the facility, many involving multiple counts.
[57] De Ruyter and Minister for Home Affairs (Migration) [2019] AATA 1392.
105. These cases show that serious offending may be sufficient to outweigh even strong countervailing considerations in favour of restoring a non-citizen’s visa, such as strong family ties in Australia and a lack of familiarity with the country of citizenship.
106. Each case turns on its own special facts. Two examples serve to illustrate this point. In Sach,[58] the applicant arrived in Australia from the United Kingdom as a 7 year old child and had been here for 45 years. In 2011 he was sentenced to a period of eight months imprisonment suspended for 12 months for the offence of unlawful assault with circumstances of aggravation. In 2015 he was sentenced to a period of two years imprisonment for making threats as well as six months imprisonment for common assault in circumstances of aggravation or racial aggravation (to be served concurrently). The Tribunal assessed that he had a low to moderate risk of reoffending but that the risk was not an unacceptable one. A critical issue was that the applicant was unfit to travel due to epilepsy. He also suffered from a complex B personality disorder.[59] His visa was restored.
[58] Sach and Minister for Home Affairs (Migration) [2019] AATA 5173 (28 November 2019).
[59] Ibid [178].
107. In Hood,[60] the applicant was a 69 year old citizen of the United Kingdom, who arrived in Australia at the age of 2 years and had never left the country. The applicant had relatively few convictions overall but they involved very serious offending. In 2005 he was convicted for supply a commercial quantity of prohibited drugs, and in 2017 he was convicted on two counts of supplying a large commercial quantity and three counts of supply an indictable quantity, which attracted terms of seven years and eight years and nine months respectively. He was also convicted for one count of dealing with the proceeds of crime, for which he was sentenced to three years imprisonment. In restoring his visa, Puplick SM stated:
143 Mr Hood’s offences were serious as are all drug offences which have the potential to ruin lives and families. However, in this instance there is little or nothing to be gained by removing him from the Australian community. He has shown genuine remorse and he is unlikely to offend again. He has mentioned his potential to work with young offenders to help deter their future offending. He has shown that he understands the gravity of his offending and he appears genuinely committed to making a positive contribution to this country which he can do with the support of his family.
144. The human consequences of non-revocation for himself and his family members outweigh the benefit to be gained by allowing the cancellation to stand and can be taken into consideration alongside the mandated considerations.
[60] Hood and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 539 (Hood).
108. In referring to such decisions, it is not suggested that the task of the decision-maker can be reduced to a matrix involving only years of residence on the one hand, and on the other, the frequency and seriousness of offending. A fuller understanding of each case would involve an examination of all the factors to which the Tribunal must have regard in seeking to arrive at the correct and preferable decision. But there are two points that emerge from this short review of decisions. First, as a matter of record, many who fail to have their visas restored after mandatory cancellation are long term residents; and secondly, none of this group had anything less than a well-developed if not egregious criminal record.
109. The Respondent accepts this consideration weighs in favour of revocation of the cancellation decision, albeit not significantly.[61]
[61] RSFIC [76].
110. I find that that OC4.1 weighs heavily in favour of revoking the cancellation decision.
(ii) Impact on Australian business interests: OC4.2
111. I find that there is no evidence of any impact on the sort of Australian business interests referred to in the Direction. This consideration has no application.
CONCLUSION
112. In weighing the primary and other considerations I note the following:
113. Factors in favour of revocation:
·The best interests of minor children in Australia affected by the decision to remove (PC3) Mildly
·Impediment to resettlement (OC2) firmly
·Links to the Australian community (OC4.1) heavily
114. Factors in favour of non-revocation:
·Safety of the community (PC1) heavily
·Expectations of the community (PC4) firmly
115. Factors that are not engaged:
·Non-refoulement (OC1)
·Family Violence (PC2)
·Victim impact (OC3)
·Impact on Australian business interests (OC4.2)
116. Two of the primary considerations weigh against the applicant, and three considerations weighs in his favour. The case is finely balanced.
CONSIDERATION
117. The Tribunal has a primary duty to ensure the protection and safety of the Australian community. However, the strength of the applicant’s pro-social supports provides some comfort against too pessimistic assessment on future dangerousness. There is a big gap in the pattern of his offending. His most recent offending which triggered the mandatory cancellation is a paradigm example of a relapse by a person with a substance use dependency. His son WP describes him as a ‘broken man with a good heart’. The love of his Australian family offers him an opportunity to rebuild.
118. His pro-social family and long Australian residence provides a compelling reason why the mandatory cancellation should be revoked, even though he fails the character test.
Decision
119. The Tribunal sets aside the reviewable decision of the delegate of the Minister dated 12 August 2022 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa. In substitution, the Tribunal decides that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked. As a result, the Applicant’s visa is not cancelled.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
.....................................[sgd]...................................
Associate
Dated: 4 November 2022
Dates of hearing: 19 & 20 October 2022 Solicitors for the Applicant: Self-represented Solicitors for the Respondent: Mr R. Harvey, AGS APPENDIX
Court Result Date Offence Date Offence Description Result
| Porirua DC | 11/08/1994 | 23/04/1994 | Wilful Damage | Convicted and Discharged |
| Porirua DC | 11/08/1994 | 23/04/1994 | Male Assaults Female (Manually) | Convicted and Sentenced : Community Service - 11/08/1994 - 100 Hours |
| Porirua DC | 11/08/1994 | 23/04/1994 | Wilful Damage | Convicted and Discharged |
| Porirua DC | 09/03/1994 | 21/03/1993 | POSSESSION OF CANNABIS | Convicted and Sentenced : Non Residential Periodic Detention - 09/03/1994 - 3 Months / Order For Destruction |
| Gisborne DC | 19/06/1990 | 04/04/1990 | Procure/Possess Cannabis Seed | Convicted and Sentenced : Non Residential Periodic Detention - 19/06/1990 - 6 Months |
| Gisborne DC | 19/06/1990 | 04/04/1990 | Cultivate Cannabis | Convicted and Sentenced : Non Residential Periodic Detention - 19/06/1990 - 6 Months |
| Gisborne DC | 19/06/1990 | 01/12/1989 | Sets Mantrap Intent To Injure | Convicted and Sentenced : Non Residential Periodic Detention - 19/06/1990 - 6 Months |
| Wellington DC | 12/02/1988 | 06/02/1988 | POSSESSION CANNABIS PLANT | Convicted and Sentenced : Fine - $220.00 / Additional Information - PAY $60 PER WEEK |
| Wellington DC | 08/05/1985 | 11/03/1985 | Possess For Supply Cannabis Plant | Convicted and Sentenced : Fine - $250.00 / Non Residential Periodic Detention - 08/05/1985 - 6 Months / Additional Information - FORFEIT $90 |
| Gisborne DC | 20/10/1982 | 08/10/1982 | Disorderly Behaviour-Likely Cause Viol | Convicted and Sentenced: Fine - $50.00 |
| Gisborne DC | 20/10/1982 | 27/09/1982 | Theft Ex Car (Over $100) | Convicted and Sentenced: Fine - $100.00 / Disqualification From Driving - 20/10/1982 - 6 Months |
| Gisborne DC | 20/10/1982 | 27/09/1982 | Unlawful Interfere Motor Vehicle Etc | Convicted and Sentenced: Fine - $50.00 / Disqualification From Driving - 20/10/1982 - 6 Months |
| Gisborne YC | 17/05/1979 | 01/05/1979 | Carry Offensive Weapon (Other Weapon) | Other: Social Welfare Supervision (YC) - 17/05/1979 - 6 Months / Additional Information - 40 HOURS COMM WORK / Ordered To Undertake Community Work |
| Gisborne YC | 17/05/1979 | 20/04/1979 | Wilf Dam – Others (Crm Act) Und $5000 | Other: Social Welfare Supervision (YC) - 17/05/1979 - 6 Months / Additional Information - 40 HOURS COMM WORK / Ordered To Undertake Community Work |
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