QBBP and Minister for Home Affairs (Migration)

[2019] AATA 3905

QBBP and Minister for Home Affairs (Migration) [2019] AATA 3905 (26 September 2019)

Division:GENERAL DIVISION

File Number(s):      2019/2194

Re:QBBP

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:26 September 2019

Place:Melbourne

The Tribunal affirms the decision under review.

........................[sgd]...........................................

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of visa under s 501(3A) of Migration Act – Class TY Special Category (Subclass 444) Temporary visa – failure to pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial Direction No. 79 applied – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – time in Australia before offending commenced – other considerations – reviewable decision affirmed

PRACTICE AND PROCEDURE – request for confidentiality order by Applicant – reasons given by Applicant – principles in s 2A and provisions in s 35 of AAT Act – Tribunal’s duty to balance application of principles with other provisions – order granted – written reasons requested – whether Tribunal has obligation to provide written reasons for interlocutory decision – no such obligation

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), ss 2A, 33, 35, 39A, 43
Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13
Migration Act 1958 (Cth), s 499, 501, 501CA, 501K

Migration Regulations 1994 (Cth), reg 2.52

Cases

FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Maxwell v R [1996] HCA 46; 184 CLR 501
Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 147 FCR 243 Pochi and Minister for Immigration and Ethnic Affairs, Re (1979) 26 ALR 247; 2 ALD 33
Sesalim and Secretary, Department of Social Services, Re [2018] AATA 384
VC and Australian Federal Police, Re (1985) 8 ALD 587

Other materials

Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (made 20 December 2018, commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

26 September 2019

1. QBBP, the Applicant in this matter, has brought to the Tribunal an application for review of a decision dated 25 March 2019 not to revoke a decision to cancel the Class TY (Subclass 444) Special Category (Temporary) visa (‘the visa’) that QBBP formerly held.

2. The Applicant is a citizen of New Zealand.  He first entered Australia on 3 November 2012 and departed on 7 November 2012.  He re-entered Australia on 2 March 2013 and was granted the visa on that entry.  The visa is a special category of temporary visa granted under the relevant provisions of the Migration Act 1958 (the Act) to citizens of New Zealand.  The visa was cancelled on 16 August 2017 under section 501(3A) of the Act by a delegate of the Respondent, the Minister for Home Affairs.  The basis of the cancellation was that the delegate was satisfied that the Applicant failed the character test set out in the Act because of provisions of section 501(6)(a) of the Act and because at that time QBBP was serving a sentence of full-time imprisonment in Queensland for a criminal conviction.  By operation of section 501(7)(c) of the Act, a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of twelve months or more.

3. Before the Tribunal was a National Police Certificate which recorded that QBBP was sentenced to a term of imprisonment of 1 year and 3 months on 18 July 2017.  QBBP agreed before the Tribunal with that fact, and that he had been paroled on 13 November 2017, and had voluntarily left Australia on 17 November 2017 and returned to New Zealand.

4. On 23 April 2019 QBBP lodged with the Tribunal an application for review of a decision of a delegate of the Respondent not to revoke the mandatory cancellation of his visa.

   PROCEDURAL MATTER – Request for non-publication order

5. On 3 June 2019 QBBP emailed the Tribunal and relevantly stated:

   I am writing to apply for an order to keep all of my information confidential as I have employment and contact opportunities currently and in the future which would be seriously affected with information made publicly available on the internet regarding this dispute [sic] and any information from my convictions in Australia.

   …

   Having my prior convictions regarding drug use easily accessible online is detrimental to that trust with my clients and suppliers and given the fact majority of my co-workers have provided references on my character including my managing director, I don’t see any reason why this information needs to go further afield than that.

   Unless I am given full name suppression for this information being provided on the internet or made publicly available, I do not want to proceed with this application.

6. On 3 June 2019 the Tribunal provided a copy of QBBP’s email to The Australian Government Solicitor (AGS), as the legal representative of the Respondent.  Later that day AGS responded to the Tribunal officer in the following relevant terms:

   The applicant is seeking suppression of his identity for reputational reasons.  The Minister does not accept that this is an appropriate basis for the making of such an order.  The publication of Tribunal decisions without suppression of identity is clearly in the public interest, other than in exceptional cases, for example where the identity of victims of sexual assault would be compromised.  Our instructions are to oppose the request made by the applicant.

7. On 12 June 2019 the Tribunal conducted a telephone directions hearing to set a  date to hear the substantive application and for other procedural matters..  QBBP appeared by telephone from New Zealand and Mr Brown of AGS represented the Respondent.

8. At the directions hearing, after dealing with matters relating to preparations for the substantive hearing, the Tribunal also considered the Applicant’s request for his name not to be published.  QBBP reiterated his written submission that it would be detrimental to his reputation in the industry in which he works, both in Australia and New Zealand, for his name to be published and linked to his prior drug convictions in Australia.

9. Mr Brown also reiterated the Respondent’s submission that the Tribunal should operate in a transparent manner and that it was reasonable for the factual circumstances surrounding review of a decision not to restore a visa to a non-citizen to be made public. Mr Brown added to the written submissions that the Respondent had already provided that the Minister opposed a confidentiality order on purely reputational grounds, in the absence of factors such as sexual offending which might involve, or might identify, young children.  The latter factors are not relevant in QBBP’s matter.

   Consideration of procedural matter

10. Division 4 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) sets out provisions relating to hearings and evidence. Section 35(1) of the AAT Act provides that, subject to that section, the hearing of a proceeding before the Tribunal must be in public. Section 35(2) of the AAT Act provides that the Tribunal may issue an order directing that a hearing, or part of a hearing, is to take place in private, and may give directions in relation to persons who may be present.

11. Sections 35(3), 35(4) and 35(5) of the AAT Act provide:

    Orders for non-publication or non-disclosure

    (3)  The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure of:

    (a)  information tending to reveal the identity of:

    (i)  a party to or witness in a proceeding before the Tribunal; or

    (ii)  any person related to or otherwise associated with any party to or witness in a proceeding before the Tribunal; or

    (b)  information otherwise concerning a person referred to in paragraph (a).

    (4)  The Tribunal may, by order, give directions prohibiting or restricting the publication or other disclosure, including to some or all of the parties, of information that:

    (a)  relates to a proceeding; and

    (b)  is any of the following:

    (i)  information that comprises evidence or information about evidence;

    (ii)  information lodged with or otherwise given to the Tribunal.

    (5)  In considering whether to give directions under subsection (2), (3) or (4), the Tribunal is to take as the basis of its consideration the principle that it is desirable:

    (a)  that hearings of proceedings before the Tribunal should be held in public; and

    (b)  that evidence given before the Tribunal and the contents of documents received in evidence by the Tribunal should be made available to the public and to all the parties; and

    (c)  that the contents of documents lodged with the Tribunal should be made available to all the parties.

    However (and without being required to seek the views of the parties), the Tribunal is to pay due regard to any reasons in favour of giving such a direction, including, for the purposes of subsection (3) or (4), the confidential nature (if applicable) of the information.

12. It is also relevant to note that section 2A of the AAT Act sets out the Tribunal’s objective and one part of that objective is that, in carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that promotes public trust and confidence in the decision-making of the Tribunal.

13. The Tribunal accepts the submissions of the Respondent that, as a general rule, the factual details relating to a review of a decision not to restore a visa to a non-citizen (thereby in this case preventing that non-citizen from re-entering Australia) should be set out in a published decision, which is generally available to the Australian public.  Public scrutiny of the proceedings and decisions of the Tribunal was explained by Brennan J (then President of the Tribunal) in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; 2 ALD 33, where His Honour stated:

    To exclude the public from a hearing is a serious step, for the Tribunal is required by statute (s 35(3)) to “take as the basis of its consideration the principle that it is desirable those hearings of proceedings before the Tribunal should be in public.”  This is a principle which is binding upon courts of justice (see R. v Tait, Federal Court of Australia, 1 May 1979, unreported), and which is calculated to ensure that public confidence in proceedings to administer justice is both warranted and maintained.  It is a principle of particular importance to a Tribunal which is engaged in reviewing the exercise of an administrative power, for administration has hitherto been a cloistered process (McPherson v. McPherson [1936] AC 177 at p. 200) and its exposure to public scrutiny is calculated to enhance greater public confidence in it.

14. However, in this case the Applicant was not making an application for the hearing to be in private or for any persons or classes of persons to be excluded from that hearing.  He also was not making a request for any particular evidence to be restricted in publication, save that his own name not be published. 

15. The Tribunal respectfully agrees with the decision in Re VC and Australian Federal Police [1985] AATA 337, wherein, after acknowledging submissions that section 35(3) discloses a clear legislative intention that directions should not be given under section 35(2) of the AAT Act unless the harm that is likely to result if no such direction is given outweighs the public interest in the public having full knowledge of the proceedings, Deputy President Thompson stated:

    However, as I have already observed, the public interest in having information about the identity of an applicant in proceedings before the Administrative Appeals Tribunal is of a considerably lower order than in the Tribunal’s hearings being conducted in public and the evidence given being available for public scrutiny.  There may well be a public interest in having information as to what proceedings are commenced in the Tribunal and subsequently withdrawn and by whom they were commenced; if that is so, it is still, I consider, an interest of considerably lower order than the interest in hearings being in public and the evidence being available for public scrutiny.

16. The Tribunal made clear to both parties in the interlocutory hearing that the decision would be published, and agrees with the Respondent that this is a general principle that founds Australia’s migration control system and Parliament’s intention that certain decisions taken under the Act, such as cancellation or refusal of a visa on character grounds, are decisions reviewable by the Tribunal. It follows as a general principle that the outcome of such reviews should be publicly known, unless there are special reasons otherwise in a particular case.

17. A main reason that the Tribunal was established in 1975 was to provide an accessible and relatively inexpensive avenue for the review of certain administrative decisions. Supporting an accessible and public merits review structure, where the Tribunal — standing in the shoes of the original decision-maker and with the same powers and discretions of the original decision-maker — affirms, varies or sets aside a decision, the reasons for the Tribunal’s decision should be published not only to the parties, but otherwise should be available. Such transparency promotes public confidence in the work of the Tribunal (another part of the objective set out in section 2A(d) of the AAT Act). The AAT Act provides specific exceptions to this approach in relation to decisions in the Security Division (section 39A(5)). Other enactments may also impose non-publication requirements on the Tribunal (for instance, section 501K of the Migration Act provides that the Tribunal must not identify an applicant for a protection visa or information that may identify such a person’s relative or other dependant).

18. In this matter, QBBP has completed the sentence imposed by the Court.  It was not contested at the hearing that his sentence includes not only his term of imprisonment, but also the satisfaction of specific parole obligations.  Those parole obligations were transferred to, and supervised by, the relevant authorities in New Zealand.  There were documents before the Tribunal that reflected the satisfactory completion of those obligations.  QBBP advised the Tribunal that he has disclosed his offending history in Australia to his employer, and that is corroborated by evidence before the Tribunal from the Managing Director of the company for whom QBBP both worked before he came to live in Australia, and with whom he has resumed employment.

19. The Tribunal makes the point that the comment by QBBP that if his name is not suppressed he would not ‘want to proceed’ with his application plays no part whether to grant this limited order.  An applicant is free to withdraw his or her application at any time and must accept that, in making an application of this nature where statutory non-publication provisions do not apply, the consequence of having a hearing may be that some personal information which is distressing, embarrassing, or simply disquieting, is published.  Analogously, as Heerey and Weinberg JJ said in Minister for Immigration and Multicultural and Indigenous Affairs v X (2005) 147 FCR 243, at [21]:

    Distress and embarrassment by reason of publication of the identity of a person involved in litigation does not in itself amount to prejudice in the administration of justice.  The importance of justice being done in public has been affirmed time and again by decisions which it would be a formality to cite.  Very often publicity is hurtful and embarrassing to someone but that is inherent in the nature of publication of court proceedings; often the more hurtful and embarrassing the proceeding the more newsworthy the report of it.

20. However, given that the AAT Act provides a discretion for the Tribunal to impose certain restrictions in relation to the conduct of a hearing, access to evidence and, specifically, the identity of parties, and that it has been long-established administrative practice of the Tribunal to draw the attention of applicants to the provisions in section 35, should they wish to make a request, a relevant question for the Tribunal is: what is the public interest in publishing QBBP’s name in these proceedings?

21. While it is axiomatic that a person is responsible for his or her own conduct, including in this case criminal offending, the Tribunal takes the view that it must take care not to allow the right provided by the Parliament for a person, including a non-citizen, to seek administrative review of certain decisions to assume – or potentially assume – a collateral nature of some further punishment for offences properly the province of the criminal justice system and already dealt with by that system.  The Tribunal does not have a penal function; its task in this matter is limited only to consider whether QBBP’s visa should be restored.  In this respect it is a relevant factor that QBBP left Australia and returned to his home country.  He is not currently in the Australian community.  This does have some effect on the Tribunal gauging, as best as possible, the public interest.  Taking all the factors into account, and balancing the general principle of transparency, the public interest, and public confidence in the Tribunal’s work, the Tribunal decided in this particular case that a limited order under section 35(3) of the AAT Act is reasonable, and it was made.

    Provision of written reasons in relation to s 35 order

22. It is relevant to note that this part of these reasons is not provided in conformity with the obligation of the Tribunal under Division 6 of the AAT Act, which sets out at section 43(2A) that a party may request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision. Division 6 is confined to decisions on review, the scope of which are set out in section 43(1) of the Act; that scope does not relate to administrative decisions made in terms of the management of an application for review. In this regard, I respectfully adopt the reasoning of Deputy President Forgie in Sesalim and Secretary, Department of Social Services [2018] AATA 384 (Sesalim), at [8].

23. However, Sesalim may be distinguished because in that matter Mr Sesalim had requested an expedited hearing, which was declined, and he then requested written reasons for that denial.  DP Forgie took the view that the scheduling of his hearing was an administrative decision about case management in the Tribunal, not a ‘decision’ related to the Applicant’s substantive reviewable matter. 

24. I have read DP Forgie’s discussion in Sesalim in regard to the operation of section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) and I think it could be argued by the Respondent that my granting of a limited order to suppress QBBP’s name is a ‘decision’ that may be encompassed by the ADJR Act. However given that I consider it is reasonable, following an oral request being made during the hearing, to provide written reasons to the parties, and told the parties so at the directions hearing, it is not necessary for me to consider that wider question further.

    HEARING OF SUBSTANTIVE MATTER

25. The hearing took place on 28 August 2019.  QBBP appeared by telephone from New Zealand, represented himself, made submissions and was cross-examined by Mr Keith Sypott of AGS, representing the Respondent.

26. The Respondent tendered two volumes of documents, which were admitted into evidence as ‘G’ documents (GD) and ‘supplementary G’ documents (SG).  The Respondent also submitted a Statement of Facts, Issues and Contentions dated 12 August 2019.

1. QBBP submitted a Statement of Facts, Issues and Contentions, received on 29 July 2019 (Exhibit A1).  QBBP also submitted several character references: from Mr CR, received on 29 July 2019 (Exhibit A2); from Mr AB, dated 15 April 2019 (Exhibit A3); from Mr BK, dated 14 April 2019 (Exhibit A4); and from Mr KH, dated 9 April 2019 (Exhibit A5), which were admitted into evidence.

   Legislative framework

2. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of QBBP’s visa if he made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Minister accepted that QBBP had made representations within the prescribed period.

3. Section 501(3A) of the Act is a mandatory cancellation power.  It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7).  Relevantly, section 501(7) states:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more; …

4. As mentioned, before the Tribunal was a National Police Certificate dated 6 November 2017 (GD, p 16) (the certificate).  The certificate states that on 18 July 2017 at Southport District Court QBBP was convicted of the offence of Possessing dangerous drug specified in schedule 1 or 2, and Supplying schedule 2 dangerous drugs (nine counts), for which he was sentenced to a term of imprisonment of 15 months.  QBBP was further convicted on the same date of the offence of Possessing relevant substances or things, for which he was sentenced to a term of imprisonment of six months (to be served concurrently); he was also convicted of the following offences: Possess utensils or pipes etc that had been used, and Possess property suspected of having been used in connection with the commission of a drug offence, without further punishment but with a pecuniary penalty of $3,370.

5. Section 501CA relevantly provides that:

   (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

   …

   (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.

6. If the Tribunal finds that QBBP fails the character test, the sole issue before the Tribunal is then whether there is another reason why the original decision should be revoked.  In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ stated, at [38]:

   The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation.  If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

   The Ministerial Direction

7. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act.  The delegate who refused to revoke the cancellation of QBBP’s visa consulted Direction No. 79 (the Direction), made under section 499.  The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter.  Paragraph 6.1 of the Direction states, in part:

   6.1Objectives

   (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

   …

   (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

8. Relevantly, the Direction includes the following principles at paragraph 6.3:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

9. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in
   Part C; which is divided into ‘primary considerations’ and ‘other considerations.’  The primary considerations in Part C are set out in paragraph 13(2) of the Direction.  They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’

10. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’  The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).  The Tribunal considered each of the primary considerations and, as relevant, the other considerations.

    Does QBBP pass the character test?

11. The total effective sentence conferred on QBBP by the Court was 15 months.  He entered custody at Court on 18 July 2017, and was released from prison and departed Australia on 17 November 2017.  There was an arrangement with the New Zealand Department of Corrections which allowed him to complete his parole obligations in that country under a Returning Offender Order (GD, p 87), which he did complete on 16 May 2018.  QBBP conceded in his submissions that he did not pass the statutory character test.

12. On the facts of the convictions made against him and the sentences imposed on 18 July 2017, the Tribunal finds that the Applicant fails the character test under section 501(3A)(a)(i) of the Act.

13. Having made that finding, the issue before the Tribunal becomes whether there is another reason (section 501CA(4)(b)(ii) of the Act) why the mandatory cancellation of QBBP’s visa should be revoked.

    National Police Certificate and New Zealand Police document

14. The Certificate (GD, pp 16-19) and a document provided by New Zealand Police (GD, p 108) provide details of certain offending by QBBP.

15. The New Zealand Police document records four traffic offences.  The first offence date recorded is 1 July 2001 which resulted in a conviction for Person Under 20 Exceeded Breath Alcohol Limit Blood/Breath = 187.  QBBP was fined $200 and disqualified from driving for three months.  On 25 August 2009 QBBP appeared in Court and was convicted of an offence dated 26 June 2009 of Drive while licence suspended or revoked.  He was fined $400 and disqualified from driving for six months.  On 23 February 2010 QBBP appeared in Court in relation to two offences on 19 December 2009: Breath alcohol level over 400 mcgs/litre of breath Blood/breath = 467, and Drove while disqualified.  On the first count he was fined $450 and disqualified from driving for 7 months; on the second count he was convicted and discharged, noting the driving disqualification.

16. The New Zealand Police document records other non-traffic related offending.  On 29 August 2005 QBBP appeared in Court in relation to an offence dated 3 July 2005 of Fighting in public place.  He was convicted and fined $200.  On 12 October 2005 the Applicant appeared in Court charged with the offence of Wilfully break glass in public place, for which he was convicted and sentenced with a fine of $100.  The New Zealand Police document then lists three offences of Breach of Community Work, dated: 20 August 2010; 29 March 2011; and 17 April 2011, with two Court appearances.  QBBP conceded he had appeared in Court in relation to failures to fulfil community work orders but contested the accuracy of the record.  The Tribunal observed during the hearing that the New Zealand Police document had lacunae in that the document does not explain how the community work orders had come about.

17. The Australian certificate records disclosable court outcomes in relation to QBBP in Australia.  QBBP arrived in Australia (for the second time) on 2 March 2013 on the visa and settled on the Gold Coast in Queensland.  He appeared before Southport Magistrates Court on 24 September 2014 charged with several offences:  two counts of Unlawful use of motor vehicles, aircraft or vessels between April and May 2013, and May and June 2013; one count of Assault or obstruct police officer in December 2013; one count of Failure to appear in accordance with undertaking in November 2013; two counts of Commit public nuisance in February and May 2014; and one count of Breach of bail granted condition dated June 2014.  On all of these charges no conviction was recorded, QBBP was placed on probation for 12 months, given a community service order of 100 hours and fined $3,415.72 in restitution.

18. On 1 December 2015 QBBP again appeared before Southport Magistrates Court in relation to the offence Failure to appear in accordance with undertaking.  No conviction was recorded and he was fined $750.  On 16 March 2015 QBBP appeared before the same Court in relation to breaching the community service order imposed in September 2014.  He was fined $500.

19. On 9 June 2016 QBBP appeared before Southport Magistrates Court charged with the offences of: Breach of bail granted conditions, Possessing dangerous drugs; and Possess utensils or pipes etc that had been used.  On all charges he was convicted and sentenced to one months’ imprisonment, suspended for 12 months.

20. On 12 October 2016 QBBP appeared before the same Court and was convicted of the offence of Possessing dangerous drugs.  He was fined $400. 

21. On 18 July 2017 QBBP appeared before Southport District Court and was convicted of the following offences: Possess dangerous drug specified in schedule 1 or 2; Supplying schedule 2 dangerous drugs (9 counts on various dates); Possessing relevant substances or things; Possess utensils or pipes etc that had been used; and Possess property suspected of having been used in connection with the commission of a drug offence.  In relation to the first possession charge and the nine supply charges, QBBP was sentenced to 15 months’ imprisonment.  In relation to the charge of Possess relevant substances or things, he was sentenced to 6 months’ imprisonment, to be served concurrently.  On the other charges a conviction was recorded but he was not further punished.

22. On 14 September 2017, QBBP appeared before Acting Magistrate Finger at Southport Magistrates Court and was convicted of the offences of: Possessing dangerous drugs; Contravene direction or requirement; and Contravene police banning notice.  In terms of the first offence, QBBP was sentenced to 3 months’ imprisonment (to be served concurrently with the sentence imposed by the District Court which QBBP was already serving).  On the other charges a conviction was recorded. 

23. The offence which triggered the application of section 501(3A) of the Act was described by Judge McGinness of the District Court of Queensland in Her Honour’s sentencing remarks on 18 July 2017, after the Judge noted QBBP’s prior criminal history commencing in Queensland in 2014 and that he did not come before the Court as somebody of prior good character, as follows (GD, p 23):

    Turning to these offences, on 18^th of November 2015, you were found in possession of 128 pills of what is known as MDA, which is a schedule 2 drug.  The total weight was 40.317 grams.  You were also found in possession of a pipe and the scales and a quantity of liquid containing what is known as GBL, the quantity being 10.435 grams.  Police also located what is referred to commonly as a tick book, which clearly disclosed you supplied drugs to others on six occasions.  The Crown allegation is that it was MDA, the schedule 2 drug.  This offending appears to have occurred over a three day period.  Also you arranged, or offered, or were involved in making arrangements to supply MDA on two further occasions, and, on one occasion, cannabis.

    You were found in possession of a quantity of money – approximately $700, and the tick sheets clearly indicated amounts of money that you received for the supply of drugs.  It is a strong Crown case against you.  You have pleaded guilty.  I accept that it is a timely plea and that is something that will be reflected in the sentence that I impose upon you.

    Evidence of QBBP

24. QBBP gave evidence that he was born in 1983 in a small town on the North Island of New Zealand.  He said his parents divorced when he was young and he grew up with his brother and his mother.  He said his mother was both mentally and, sometimes, physically abusive and he moved out of home aged 14 to an uncle’s farm.  QBBP attended the local school from 14 to 17 years of age.  On the farm he worked with sheep and horses and built up some affinity with the latter, which he later developed into a nascent bloodstock business.

25. QBBP told the Tribunal that he first started drinking alcohol aged around 16, before he went to university.  He attended Massey University and studied a Bachelor of Business Studies degree, completing his studies in 2006 and graduating in 2007.  QBBP said that he worked a number of jobs while undertaking his university course, as a cleaner and as a slaughterman in an abattoir, and kept working in the latter for some time after graduating.  He told the Tribunal that his drinking at this stage was quite heavy, perhaps three or four times a week.  He said he also used cannabis ‘a few times’ at this time.

26. QBBP said he continued to drink alcohol, getting drunk once or twice a week, sometimes more often, until he moved to Australia.  He said he was not using drugs at that time, apart from the occasional use of cannabis.  He began working for a telecommunications company in Wellington as a sale representative and then for a number of other companies.  He also said he bought and sold racehorses for three or four years from 2009 to 2013.

27. QBBP was asked about his offending history in New Zealand.  He did not recall the conviction for fighting in a public place, but suspected it may have been in a pub.  In terms of the conviction for breaking glass, he said he threw a bottle out of a moving car.  In terms of the breaches of community orders, he said he was working at the time and placed more weight on his work than completing the orders, but he was adamant that he had not committed three breaches as described in the New Zealand police document.

28. QBBP said his first visit to Australia in November 2012 was to attend the Spring Racing Carnival in Melbourne.  He was only in Australia for a few days.  When he returned to Australia in March 2013 he completed an arriving passenger card (a copy of which is at GD p 162). In answer to the question on the card: Do you have any criminal conviction/s?  QBBP ticked the box for ‘no’.  He said that he had been intoxicated on the day of travel and had not paid close attention to the card.  He agreed now that the answer should have been ‘yes’.

29. The Tribunal asked the Respondent whether a copy of the passenger card QBBP completed in relation to his 2012 travel to Australia was available.  Mr Sypott responded that it was not in the documents before the delegate and later submitted that it was the Respondent’s view, in the absence of contrary evidence, that the Tribunal should assume the passenger card had been filled in correctly in 2012.  Given this submission, while the Tribunal notes that providing wrong information to the Department on a passenger card constitutes a serious matter, and an explanation of being intoxicated when filling it in is no defence at all, by itself this single instance is not a significant ingredient in this broader consideration.

30. In Australia, QBBP was employed as a sales representative for a health and fashion company from 2013 to 2014 selling phone systems, security cameras and photocopiers.  He then worked for a telecommunications company from 2015 to 2016 selling mobile systems but lost his driver licence around this time and had to move to a telemarketing role.  QBBP said he thinks he lost his licence through an accumulation of demerit points for speeding offences and using his mobile phone when driving.

31. QBBP then was employed gathering information for an insurance company online and also in his own small business undertaking web design, including helping a charitable organisation by constructing its website, a task that he said he had almost completed before he was imprisoned.

1. QBBP said that he was in a relationship when he came to Australia and his then girlfriend came over from New Zealand to see him on a couple of occasions, before she left him for his best friend.  He said he became depressed about the break-up and started drinking alcohol more.  QBBP said he also started using drugs which were readily available on the Gold Coast, principally marijuana and ecstasy.  He said that at one stage he used ‘ice’ (crystal methamphetamine) and cocaine.

2. QBBP was asked about the 2013 offences for unlawful use of a motor vehicle, but said he could not recall the detail because he was drunk at the time.  He also could not recall the details of the other offences at that time: assaulting or obstructing a police officer, failing to appear, public nuisance and breaching bail.

3. In terms of the offences of 18 November 2015, QBBP agreed that the police came to his flat in connexion with a breach of bail and they discovered various items, including 128 tablets of MDA and 2 bottles of GBL.  He said he could not recall if they also found scales, sealed bags (some containing pills and some empty), a bong, and capped syringes.  In terms of an exercise book which was listed as being found at the flat (and referred to by the sentencing Judge), QBBP said he did not recall that but in answer to a direct question from the Tribunal said he did not dispute that the book was found there.

4. He said at this time he was taking ‘10 or 12 MDA tablets a night’.  In explanation for the 128 pills found at the flat, QBBP said 20 or 30 were for his own use, and said the remainder were for a friend.  He said he pleaded guilty to all charges and at the time was dealing in cannabis and ecstasy for some friends.

5. QBBP was asked about being apprehended by police in January 2016 with between 100 and 200 tablets, but denied that he was going out to deal in drugs that day, saying he ‘wasn’t thinking straight’.  In March 2017 he was apprehended with 25 ecstasy tablets and said that was ‘pretty close to’ the last time he used drugs, because he sobered up enough to realise how much trouble it was causing him in terms of his physical and mental health and because he was arrested.

6. QBBP confirmed that he was employed in Australia throughout the period of his drug-taking and dealing.  He met a new girlfriend, SR, and moved in with her.  He said SR frowned on him taking drugs and was keen on physical exercise.  He said he undertook alcohol and drug rehabilitation courses when in prison and learned about how to handle stress without taking drugs.  He said he was offered drugs regularly in prison but stayed away from them.

7. QBBP said that he was given the choice of entering immigration detention or returning to New Zealand at the end of his non-parole period, and chose to return to New Zealand.  He said he was subjected to random visits from New Zealand police and urine tests while on parole, and did not return any positive result.  This evidence accords with the advice from the New Zealand Department of Corrections dated 22 June 2016 (GD, p 87) which said that QBBP had “completed an assessment with CareNZ for harmful alcohol and drug use, and engaged well with this process.”

8. QBBP said that SR (who was a British citizen visiting Australia when they met) came to New Zealand after his return there. QBBP resumed employment with a former employer and became a Business Development Manager.  SR lived with him until the end of 2018 and they travelled to the United Kingdom and Barbados together.  SR broke up with him around the end of 2018 but QBBP said he did not think it was relevant to inform the Department of Home Affairs (the Department) about the change in his relationship status, although he did provide other updated personal information.  The Tribunal notes that this led to the delegate being under a misapprehension about QBBP’s personal circumstances.

   Evidence in written statements

9. As mentioned above, the Tribunal had before it several written statements from friends of QBBP.  Mr CR said he knew QBBP on the Gold Coast as a friend and was aware of his drug use but believed that he was a ‘good role model for others in how to overcome drug use’.

10. Mr AB said he had known QBBP since they were at school together and renewed their friendship when both were working in Australia before Mr AB returned to New Zealand.  He said that QBBP’s ‘character has changed dramatically since 2017’ and urged that QBBP’s visa be restored.

11. Mr BK said he had known QBBP for 23 years and had noted his sobriety had improved dramatically and that he felt QBBP had learned a very valuable lesson through the process. Mr BK lives in Victoria and hoped that QBBP would have his visa restored so they could go on holidays together.  Mr KH, who lives in Australia, said he has kept in touch with QBBP and felt he should have his visa reinstated.

    Consideration of the Direction

12. The Tribunal considered each of the primary and other considerations set out in Part C of the Direction.

    Primary consideration - Protection of the Australian community (paragraph 13.1)

13. The Direction requires decision-makers, including this Tribunal, to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

14. It was the evidence of QBBP, accepted by the Respondent, that QBBP had acquired a drug habit when living in Queensland and had become addicted in 2014 to certain drugs.  There was evidence before the Tribunal that supports that contention (GD, p 23) and the Tribunal finds that was the case.  It is also evident from the evidence QBBP gave at the hearing that he not only took drugs, but dealt in them.  QBBP’s evidence was that he sold drugs to ‘a few friends’ but he was otherwise unspecific about his dealing activities.

15. During the hearing, the Tribunal reminded QBBP that he had pleaded guilty before the Court to nine counts of supply of a dangerous drug (GD, p 23), which he conceded.  The Tribunal explained to the Applicant that a person making a plea of guilt means that the person admits to, and accepts, all the elements of the offence for which the person was charged. The authority for that position is Maxwell v R [1996] HCA 46; 184 CLR 501, Dawson and McHugh JJ, at [19]:

    An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence…

16. When he was taken through the events on the day which led to that plea and conviction, QBBP agreed that 128 pills were found at his flat but stated that “20 or 30 beside my bed were mine.  The rest were my friends’.”  He conceded he was ‘dealing cannabis and ecstasy for some friends’ but said he could not recall that a set of scales was found at the flat, nor could he recall being in possession of an exercise book with names and amounts indicating he had dealt drugs on six occasions, or that his mobile telephone had been confiscated by the police.

17. It troubled the Tribunal that while on the one hand QBBP agreed with the fact that he had pleaded guilty to all charges, he was unforthcoming about some of the items found at his flat on the day of his arrest that supported the charges of supplying drugs, including the fact that there were a number of press-seal plastic bags found, some containing pills and some empty.  His explanation to the Tribunal is that his memory was not clear because of the amount of drug use at the time.  While accepting QBBPs contention that his memory may have been to some extent affected by drugs, I note he had no trouble recalling and taking issue with the specific details of other much more historical information, such as the particular number of days the New Zealand courts had assigned to him in terms of community service orders back in 2010 and 2011.

18. QBBP’s vagueness about these details, and in these proceedings about the extent of his dealing activities, leads the Tribunal to conclude that there remains an element of evasiveness that contributes to a finding that there is some risk that he could re-offend in the same manner.  It may be accepted that QBBP’s drug supplying was linked directly to his own drug-taking and that it may not have been on a large scale, but it was, as Her Honour stated, clear that the possession of the drugs was for a commercial purpose.

19. I am required by the Direction to have regard to the nature of harm to individuals should QBBP engage in other criminal conduct and the likelihood of him so doing on the evidence available.  While the Tribunal accepts there is evidence of compliance with parole requirements (GD p 87) and QBBP’s ‘strong goal to continue to abstain from’ the use of non-prescription drugs (CareNZ assessment, GD, p 107), when asked by the Respondent about whether he still maintained contact with persons to whom he had dealt in drugs, QBBP told the Tribunal:

    I keep in touch with a couple of people who bought drugs off me; one has been in and out of rehab.  One lives in Burleigh Heads.  I keep in touch on social media.  From my knowledge, they are not using drugs.

    When asked whether he would catch up with them if allowed to re-enter Australia, QBBP said “Not if I suspected they were using drugs.” 

20. I am not satisfied there was complete appreciation by QBBP of the seriousness of his offending in Australia, nor that, placed back in a similar environment and noting this evidence at the hearing that he has maintained contact with several persons who have a drug-taking history (accepting he may have supported them in their rehabilitation), there is not some likelihood of re-offending.  It may not be a high likelihood, but it is not a fanciful likelihood.  I also note that QBBP has a history in both New Zealand and Australia of being cavalier about complying with court orders, and it was a breach of a bail undertaking which brought the police to his flat on the day the drugs were found.

21. The Tribunal also notes that QBBP has, as the sentencing Judge noted, an extensive criminal history (if at the lower end of seriousness) unrelated to drugs from 2001, and several offences proven for breaches of orders of the courts.  This does exhibit an historical disregard for authority and for abiding by the law.  Counting in his favour is evidence that he is trying to rebuild his life, has by all accounts abstained from drugs and has resumed his consistently solid employment record.

22. However, there is also evidence before the Tribunal that QBBP has minimised his offending history, notably in his 5 September 2017 letter to the Department where he stated “I have no prior criminal history other than a littering charge and another minor charge in New Zealand prior to my relationship breakdown and offending in Queensland.”  QBBP was asked about this information he gave to the Department and he admitted to the Tribunal that it was untrue.  I regard the willingness to give such misleading information to the Department and the failure to acknowledge elements of the offending to which he pleaded guilty as also consistent with a deliberate desire to downplay or understate, rather than frankly acknowledge, his past serious offending.  This attitude, in relation to certain answers, continued at the hearing.

23. Taking all the evidence before it into account, the Tribunal finds that this primary consideration weighs against revoking the visa cancellation.

    Primary consideration - Best interests of minor children in Australia affected by the decision (paragraph 13.2)

24. In answer to direct questions from the Tribunal, QBBP confirmed that he did not have children and that there were no minor children in Australia affected by this decision.  The Tribunal finds that this consideration in the Direction is not engaged.

    Primary consideration – Expectations of the Australian community (paragraph 13.3)

25. The Direction reminds decision-makers that the Australian community expects non-citizens to obey Australian laws while in this country. The Tribunal would add that expectation is no different from what is expected of Australian citizens, whether by birth or conferral. 

26. The Respondent submitted that this part of the Direction should be taken by the Tribunal to be the Government’s view as to the expectations of the Australian community and it is not for the Tribunal to make its own determination of community expectations by reference to the Applicant’s circumstances or evidence about those expectations.  The Tribunal generally accepts that the Direction sets out, in this part, a ‘norm’ (see FYBR v Minister for Home Affairs [2019] FCA 500, Perry J at [42]), but is of the view that an applicant’s circumstances can usefully inform a decision-maker how this consideration should be weighed, and the weight apportioned cannot be addressed in isolation from those relevant circumstances.

27. QBBP had been resident in Australia for just one month before his first offending, unlawful use of a motor vehicle in April 2013, in Queensland.  He then became involved, even if it might have been in a small way, in the commercial supply of dangerous drugs and he rightly acknowledged at the hearing that he was guilty of serious offences.  The Tribunal takes the view that an informed member of the Australian community would look dimly at a newcomer to this country becoming relatively quickly immersed in the drug scene, and a commercial participant in that scene.

28. The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.

    Other considerations

    International non-refoulement obligations (paragraph 14.1)

29. Mr Sypott submitted that this consideration was not relevant in QBBP’s case.  The Tribunal notes that Australia has international obligations not to forcibly return a person to a place where they will be at risk of a specific type of harm, but that QBBP gave evidence that he elected to voluntarily return to New Zealand and had re-established himself there without any apparent difficulty, had reconnected with his family and had been re-employed by his former employer. The Tribunal therefore weighs this consideration neutrally in this consideration.

    Strength, nature and duration of ties to Australia (paragraph 14.2)

30. The Direction requires the Tribunal to have regard to how long a non-citizen has resided in Australia, with less weight being given where the non-citizen began offending soon after arriving in this country. More weight should be given to the time the person has spent contributing positively to the Australian community.

31. The Tribunal accepts that QBBP made some positive contribution to Australia through his employment when in this country.  He also did some charitable work in helping design a website for a not-for-profit organisation.  QBBP said that he had relatives on his father’s side resident in Queensland but was not close to them.  He said he had an aunt and two adult cousins in Brisbane and an uncle in Cairns as well.  He told the Tribunal none of these relatives knew about his offending, incarceration or the loss of his visa, or about his prior offending in New Zealand.

32. The Tribunal notes various testimonials that were submitted by QBBP by friends in Australia, the broad purport of which is outlined earlier in these reasons.  There is no doubt that his Australian friends would prefer that QBBP had the ability to visit them for social reasons, and would be disappointed if that cannot occur; but none of them expressed any view higher than that.

33. The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, but only very lightly so, given the relatively short length of QBBP’s residence in Australia before being incarcerated, the lack of regular contact with relatives in this country and the fact he began offending around a month after his arrival.

    Impact on Australian business interests (paragraph 14.3)

34. This part of the Direction requires decision-makers to consider the impact on Australia’s business interests if a non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of an important service in Australia.  While QBBP had a good work history in Australia, there was no evidence before the Tribunal that his work in this country fulfils the criteria set out in this part of the Direction.

35. This other consideration weighs neutrally in the Tribunal’s consideration.

    Impact on victims (paragraph 14.4)

36. The Tribunal must consider the impact of a decision not to revoke the mandatory cancellation on members of the Australian community, including victims of the non-citizen’s criminal behaviour where that information is available. There was no information before the Tribunal about the effect on victims of QBBP’s drug dealing, so the Tribunal does not consider this other consideration further.

    Extent of impediments if removed (paragraph 14.5)

37. The Direction requires a decision-maker to consider the extent of impediments a 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 person’s age and health, any language or cultural barriers, and social, medical or economic support available to them in that country.

38. QBBP is a New Zealand citizen and as such is able to avail himself of the social services provided by the New Zealand Government.  He gave evidence that he has been re-employed by his former employer and indeed has attained a more responsible position.  He also told the Tribunal that he has, since leaving Australia, travelled for recreational reasons to the United Kingdom and Barbados.  QBBP did not advance any evidence that there were any impediments with his repatriation, indeed he told the Tribunal he had elected to be voluntarily removed to New Zealand at the end of his non-parole period.

39. The Tribunal therefore finds that this consideration weighs neutrally in regard to the revocation of the mandatory cancellation of the visa.

    Concluding remarks

40. QBBP is a relatively young man who is tertiary educated and who was able to point to a consistent work history.  He has skills and some entrepreneurial aptitude, illustrated by his involvement in the bloodstock industry and setting up his own website design company.  He does have a criminal history with some serious offences but up until his drug supply offences in Australia, this was a history that he had effectively surmounted.  He fell into drug taking and then, lamentably, into supplying dangerous drugs.  Dealing in illegal drugs is in a different category from using such drugs.  It is completely unacceptable behaviour that the criminal justice system rightly addresses with a significant penal response because it has a direct and detrimental effect on society. 

41. In QBBP’s case he has some family links with Australia, but they are not strong, on his own evidence, and not strongly persuasive in this consideration.  Of the considerations a decision-maker must have regard for in the Direction, the two relevant primary considerations weigh against revoking the mandatory cancellation.  Of the other considerations in the Direction, only one weighs very lightly in favour of revoking the mandatory cancellation decision, although some others weigh neutrally.  The Tribunal is not constrained only to the subject matters set out in the Direction, and may consider any other relevant consideration in relation to ‘any other reason’ why the mandatory cancellation of a visa may be revoked.  In this matter, no such factor has been put forward, nor can be discerned on the facts.

42. Taking all the evidence into account, the Tribunal is not satisfied that the discretion provided for by the Parliament in section 501CA(4)(b)(ii) of the Act should be exercised in QBBP’s case. It follows that it is the Tribunal’s conclusion that the decision under review not to revoke the mandatory cancellation of QBBP’s visa was a decision that was correct in law and that the discretion available was applied, in this case, correctly.

    DECISION

1. The decision under review is affirmed.

101.     

I certify that the preceding 100 (one hundred) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

………………[sgd]………….
Associate

Dated: 26 September 2019

Date of hearing:	28 August 2019
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor