Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 1425

Rewha and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1425 (4 June 2024)
Division:GENERAL DIVISION
File Number: 2022/8852
Re:Phillip Rewha
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member S Burford
Date of decision: 4 June 2024
Date of written reasons: 5 June 2024
Place:Perth

The decision of the delegate of the Respondent dated 19 October 2022 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.....................[Sgd]...................................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 52 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 198, 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F, 501E, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47
Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2,3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(5), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1) 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1.1(1)(f), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.3(4)(a), 8.3(4)(a)(i), 8.3(4)(a)(ii), 8.4, 8.4(3), 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Senior Member S Burford
5 June 2024
The decision in this matter was made and provided to the parties on 4 June 2024 with a note that written reasons would be provided within a reasonable time. These are those written reasons.
THE APPLICATION

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 19 October 2022 not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category visa (visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
The application is made pursuant to s 500(1)(ba) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
The application in this instance is being dealt with on remittal from the Federal Court of Australia.
BACKGROUND
The Applicant is a 52-year-old citizen of New Zealand.[1] He first arrived in Australia on 29 March 1991 but did not commence living in Australia until May 1995. He has departed Australia on ten occasions since that time.[2]
[1] R1, G10, page 46.
[2] R1, G17, pages 89-90.
In September and October 2021, the Applicant was convicted of a number of offences in the Perth District Court and the Midland Magistrates Court. The more serious of those offences were dealt with in the District Court on 14 September 2021 when the Applicant was convicted of ‘having ready access to both weapons and illegal drugs’, ‘possession of stolen or unlawfully obtained property’ and ‘possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ for which he received a total effective sentence of two years imprisonment.[3]
[3] R1, G4 and R1 page 171.
On 7 October 2021, the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was 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 Territory (the Cancellation Decision). The Applicant was notified of the decision by hand on the same date at Wooroloo Prison Farm.[4]
[4] R1, G24, page 91.
On 20 October 2021 the Applicant requested revocation of the Cancellation Decision.[5] He submitted a Personal Circumstances Form and evidence to the Department in support of his request.[6]
[5] R1, G7, pages 35-39.
[6] R1, G9 and G10.
On 19 October 2022, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[7] This is the reviewable decision before the Tribunal. The Applicant was notified of the Non-Revocation Decision by email on 21 October 2022.[8] A signed acknowledgement of the notification indicates it was hand delivered to the Applicant on 24 October 2022.[9]
[7] R1, G3, page 7.
[8] R1, G3, page 4.
[9] R1, G26, page 121.
The Applicant lodged his application for review of the Non-Revocation Decision On 25 October 2022.[10] The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.
[10] R1, G2, page 3.
On 20 December 2022, the Tribunal held a hearing before the Tribunal, differently constituted. On 13 January 2023, the Tribunal affirmed the Non-Revocation Decision.[11]
[11] R1, page 335-373.
On 19 May 2023, the Federal Court of Australia found that the Tribunal had discounted a West Australian Government Department of Justice classification review which described the Applicant as a low risk of reoffending without any foundational material for that view and without affording the Applicant procedural fairness.[12] It was held that this amounted to a jurisdictional error.[13] The Court ordered that the matter be remitted to the Tribunal for determination according to law.[14]
[12] Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748 at [36]; R1, page 374.
[13] Rewha v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 748 at [38].
[14] R1, page 374.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[15]
[15] See s 501CA(4) of the Migration Act.
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be affirmed.
THE HEARING AND THE EVIDENCE
The hearing of the remitted application was held on 27 November 2023. The Applicant was self-represented. The Respondent was represented by Ms Daphne Jones-Bolla from Sparke Helmore Lawyers. Both Parties appeared via Microsoft Teams. The Tribunal notes the Applicant appeared from New Zealand.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. No other witnesses were called. However, as noted at the hearing, the remittal bundle included the transcript of the previous Tribunal proceedings on 20 December 2022 at which Ms Stephanie Rewha (the Applicant’s sister), Ms Emma Green (the Applicant’s fiancé) and Ms Danielle Rewha (the Applicant’s daughter) gave evidence in support of the application for review of the Non-revocation Decision.[16] The Applicant confirmed at the hearing before the current Tribunal that while he was not calling witnesses he was seeking to rely on the evidence previously provided.[17] The Tribunal has had regard to the evidence provided by those witnesses at the previous hearing, statements previously provided by the Applicant and submissions made on his behalf by his then representative, Mr Glenister, of Counsel.
[16] See [16].
[17] Transcript, page 5.
The following documents were marked as exhibits:
·Undated letter from the Applicant (Exhibit A1);
·Photograph of plaque from Kalamunda District Rugby Union Club, Coach under 8’s in Applicant’s name and team photo (Exhibit A2);
·Letter from Miss Emma Louise Green dated 7 October 2021 and re-dated 10 October 2023 (Exhibit A3);
·Letter from New Zealand Department of Corrections dated 3 October 2023 (Exhibit A4);
·Letter from Lesley Lydiate, Kalamunda Rugby Union Club, dated 11 October 2023 (Exhibit A5);
·Birth certificate of Mstr C, registered 28 March 2023 (Exhibit A6);
·Letter from Annie Williamson of Annies Collective Wonderland, undated (Exhibit A7); and
·Remittal Bundle comprising pages 1-471 (Exhibit R1).
On 31 August 2023, a directions hearing was held to program the matter for hearing. During which the Tribunal discussed with the parties matters arising for consideration under Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) (Direction No 99) and the filing of evidence and submissions, noting that the previous Tribunal had considered the matter by applying Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) (Direction No 90). With the agreement of the parties, the Tribunal also directed that the Respondent file their RSFIC first to assist the Applicant to understand the points at issue and to prepare submissions and evidence in response.
The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 29 September 2023 prior to the hearing and an Updated Statement of Facts, Issues and Contentions (RSFIC 2) dated 21 November 2023.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Minister in written submissions and in oral closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction No 99.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(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; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[18] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[19]
[18] Migration Act s 501CA(3).
[19] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[20] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[20] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 23 January 2023, the Minister made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90.[21]
[21] Direction No 99 paras 2-3.
The Tribunal notes that the previous direction, Direction No 90, was in force at the time the Non-Revocation Decision was made.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[22] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[23]
[22] Direction No 99 para 5.1(4).
[23] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
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 fulltime 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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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 [sic] 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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.55(2) [24](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 [sic] risk of causing physical harm to the Australian community.
[24] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[25]
[25] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[26]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[26] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[27]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed;
(c)       impact on victims; and
(d)       impact on Australian business interests.
[27] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant’s record of criminal offending in Australia commenced in 2006. A detailed table of his offending history is at Annexure A.[28] That table is drawn from the information contained in the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 11 October 2021[29] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 15 November 2022.[30]
[28] Drawn from R1, G4 and R1, pages 168-169.
[29] R1, pages 23-25.
[30] R1, pages 168-172.
The Applicant has been convicted of a number of offences including:[31]
·Drug and weapons offences: cultivate a prohibited plant (2021); possess a prohibited drug (cannabis) (2021); possess a prohibited drug (MDMA) (2021); possess a prohibited drug (methylamphetamine) (2021); possessed a prohibited drug (cocaine) (2021); possessed a prohibited drug (2021 – 5 counts); possessed drug paraphernalia in or on which there was a prohibited drug or plant (2021 – 2 counts); possession of a drug or substance (2021); possession of a prohibited drug with intent to sell or supply (methamphetamine) (2021); unlawfully possessed or controlled a prescription drug (2021 – 5 counts;) unlicensed person possess firearm/ammunition (2021 – 4 counts); having ready to access to both weapons and illegal drugs (2021).
·Driving and traffic related offences: exceed 0.05g alcohol per 100ml blood (2010); excess 0.08% (2006).
·Other offences: possession of stolen or unlawfully obtained property (2021); unlicensed possession of dangerous goods (2021); fail to obey order given by an officer (2010).
[31] R1, G4, pages 23-26.
The Applicant’s criminal record in Australia commenced in 2006 when he was convicted of ‘excess 0.08%’.[32] In October 2010 he was convicted of ‘fail to obey an order given by an officer’ (now a spent conviction) and in December 2010 he was convicted of a similar offence exceed ‘0.05g alcohol per 100ml of blood’.[33] On each occasion he was fined and his drivers’ licence suspended.[34] There was then a significant gap in his offending until the 2021 convictions.
[32] R1, G4, page 25; G26, pages 166 and 173.
[33] R1, G26, pages 165 and 176.
[34] R1, G4, page 25.
On 30 March 2021, members of the police Gang Crime Squad conducted a search of the Applicant’s home initially looking for another suspect who was a member of his extended family. During that search, police located a room which had been fully converted for the cultivation of cannabis and contained four mature cannabis plants. The police also found a number of items belonging to the Applicant including:[35]
·13.45 grams of methylamphetamine in multiple clip seal bags;
·a tick sheet, digital scales and clip seal bags throughout the property, a mobile phone which revealed communications relating to him selling drugs to other people;
·$1,190 in cash;
·two flick knives, a shotgun and a rifle that had been stolen in a burglary as well as ammunition;
·two sandwich bags containing 56 grams of cannabis inside the freezer, 28 grams of cannabis in the bedroom and 7 grams of cannabis in a tobacco container, 4 mature cannabis plants in the cultivation room and a further 3 plants in the backyard as well as smoking implements containing traces of cannabis and grinders used to grind cannabis;
·a clip seal bag containing 0.1 grams of cocaine;
·9 glass smoking implements some containing clear traces of methylamphetamine; and
·Other prescription and illicit drugs including 8 tabs of LSD; 1 gram of psilocybin mushrooms; 1 gram of dimethyltryptamine in multiple clip seal bags; 25 oxycodone tablets; 12 bars of alprazolam prescribed to another person; 0.1 grams of MDMA; 14 Pregabalin tablets prescribed to another person; 9 Diazepam tablets; 15 tablets of Melatonin; 8 Quetiapine tablets; an Adderall tablet and 65 Dexamphetamine tablets.
[35] R1, G5, page 28; G26, pages 149, 179-204 and 223-225.
The Applicant was remanded in custody from 30 March 2021 and released on bail on 13 May 2021.[36]
[36] R1, G26, page 124.
On 14 September 2021, the Applicant was convicted in the Perth District Court of the following offences:[37]
·‘having ready access to both weapons and illegal drugs’ for which he was sentenced to two months imprisonment (concurrent);
·‘possession of stolen or unlawfully obtained property’ for which he was sentenced to four months imprisonment (concurrent); and
·‘possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ for which he was sentenced to two years imprisonment (concurrent).
With a total effective sentence of two years imprisonment.
[37] R1, G4 and G5.
The sentencing judge in the District Court described the offending as ‘very serious’ noting he was engaged in the distribution of prohibited drugs albeit for small amounts of profit.[38] The Court accepted that his offending ‘is best characterised as that of a low level user dealer’, selling small amounts of methylamphetamine within his circle to fund his own drug use. It was noted that while the charges were the Applicant’s first major offences this was ‘not an isolated incident’ and that it appeared the Applicant had been ‘routinely disobeying the law for a significant period of time’[39] and that he had been ‘routinely using dugs and dealing drugs over a long period of time’. Accordingly, he did not ‘quite’ get the benefit of being treated as a first offender.[40]
[38] R1, G5, page 29.
[39] R1, G5, page 29.
[40] R1, G5, page 30.
On 1 October 2021, the Applicant was convicted in the Midland Magistrates Court of a number of further offences related to the Gang Crime Squad search in March 2021. Those offences included:[41]
[41] R1, G4, page 24; R1, page 147-152.
·unlawfully possessed a controlled or prescription drug (five counts);
·possessed a prohibited drug (four counts);
·possession of drug or substance;
·possess a prohibited drug (methylamphetamine);
·possessed a prohibited drug (cocaine);
·possess a prohibited drug (cannabis);
·possess a prohibited drug (MDMA);
·possessed drug paraphernalia in or on which there was a prohibited drug or plant (two counts);
·cultivate a prohibited plant;
·unlicensed person possess firearm/ammunition (four counts); and
·unlicensed possession of dangerous goods.
The Applicant received fines for the majority of these convictions with the exception of two of the four counts of ‘unlicensed person possesses firearm/ammunition’, for which the Applicant received terms of imprisonment of two months each (concurrent) from 1 October 2021.[42]
[42] R1, pages 147-152.
In the Magistrates’ Court the sentencing judge noted with respect to the weapons offences that the Applicant had possessed a pump action shotgun and a .22 calibre rifle with ammunition. The Applicant claimed he had purchased the guns for rabbit hunting though the sentencing judge noted his scepticism that a pump action rifle would be used for that purpose. It was also observed that the presence of guns was ‘always a concern’ and even more so in combination with the presence of drugs.[43] However, the possession of the weapons was marked on the lower end of the scale and the sentences were cumulative on those handed down by the District Court.
[43] R1, page 150-151.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[44] Migration Act s 501(7)(c).
[45] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[44] Failure to pass the character test arises as a matter of law.[45]
The Applicant conceded he did not pass the character test.[46]
[46] R1, page 297.
On 14 September 2021, the Applicant was convicted of ‘possession of a prohibited drug with intent to sell or supply (methylamphetamine)’ in the Perth District Court and received a sentence of two years imprisonment.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[47]
[47] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
In his statement to the Tribunal the Applicant described the reasons he contends the cancellation should be revoked as follows:[48]
This is the third year I have been away from my loved one, my children, grandchildren, my fiancé, stepchildren and my extended family in Perth.
I had to leave detention because hearing the daily struggles Emma was having had a very negative impact on my mental health, I felt helpless. I chose to take voluntary removal so I could at least support her and the girls financially.
I have managed to find short term work but am unable to return to my trade because all my hand tools are still in Perth;
I continue to suffer with depression because of my ordeal and continued separation anxiety being away from my loved ones.
Since my first hearing at AAT my son and his wife Alana, have welcomed another grandchild into the family. [Mstr C], he is named after my late father and the oldest and first male of my fathers’ great grandchildren. It pains me to think I would not be able to be a part of his/their lives.
Emma was happy to move here to be with me but since returning we have encountered several hurdles that have not made that possible. The only future we see together as a family is me returning to Perth.
I am not trying to defend my actions in any way, I made very poor choices without considering the negative impact I was having on the community. I am truly remorseful. I complied with police upon my arrest, pleaded guilty at the first opportunity, was a model prisoner and a model detainee. I obtained parole at the first opportunity…
[48] A1.
In evidence and submissions to the Tribunal the Applicant stressed that he was committed to not reoffending and that he considers Western Australia his home. His family and friends are here and it is likely he will be permanently separated from them in New Zealand. He wants to return and rebuild his relationships and support his family here. [49]
[49] Transcript, pages 39-42.
In earlier submissions the Applicant contended, in summary, that:
·He concedes that the protection and expectations of the Australian community weigh against revocation but that they are outweighed by the remaining considerations which all weigh in favour of revocation;[50]
·Other than minor historical offending, his convictions all relate to the possession and sale of prohibited drugs arising from the search on 30 March 2021. He was remorseful, cooperated with police, was a low-level user-dealer and has abstained from using drugs since his arrest; [51]
·His offending can be explained by the breakdown of his marriage, the death of his father and mother, his children leaving home and the affects of COVID-19 on his business;[52]
·His offending was entirely related to his prior addiction, and he has been clean since March 2021. He has competed programs and has good employment prospects and a supportive family.[53] He has made ‘great changes’ in his life by attending substance abuse counselling to resolve issues with his marriage breakdown and the recent death of his mother;[54]
·He was granted parole and it can be assumed was assessed by the Prisoner’s Review Board to present an acceptable risk to the community;[55]
·It is submitted that there is a low likelihood of him reoffending in a similar manner. The likelihood of his reoffending is reduced by his time in custody, his successful completion of rehabilitation programs and voluntary courses, his insight into his offending, his strong desire to live with his partner and re-establish relationships with his children, stepchildren, partner, grandchild, nephews and nieces and grandnephews and grandnieces, his resolve to abstain from drugs and the other protective factors;[56]
·He is the ‘patriarch’ of his family and his home has become the ‘homestead’ for many friends and family.[57] He plans to support his partner and her two daughters and that they would be devastated if he could not.[58] He would be unable to return to Australia to visit his children, granddaughter, nieces, nephews and partner.[59] His home is the only home with a swimming pool and consequently his home has become a place for family gatherings where his family spends many weekends.[60] The best interests of his grandchildren, stepdaughters and grand nieces and nephews weigh in favour of revocation;[61]
·He has been in Australia for most of the last 28 years and has spent more of his adult life in Australian than in New Zealand. He has a large immediate and extended family here who will be impacted by his removal. He should be considered part of the Australian community; and[62]
·His indefinite separation from his family will be a source of stress which will impede his ability to establish himself and maintain a basic standard of living.[63]
[50] R1, page 298.
[51] R1, page 299.
[52] R1, G10, page 55.
[53] R1, page 299.
[54] R1, G9, page 43-44.
[55] R1, page 299.
[56] R1, page 300; R1, G9, page 43; R1, G10, page 49.
[57] R1, G9, page 43.
[58] R1, G10, page 49.
[59] R1, G10, page 58.
[60] R1, G10, page 53.
[61] R1, page 301.
[62] R1, page 302.
[63] R1, page 303.
The Minister submitted, in summary, that the considerations weighing against the Cancellation Decision being revoked outweigh those considerations weighing in favour of revocation noting:[64]
[64] RSFIC2.
·The Applicant’s offending should be viewed as serious having regard to his term of imprisonment and the cumulative impact of his offending on the Australian community;
·The Applicant provided false and misleading information to the Department by incorrectly stating on his incoming passenger cards that he did not have any criminal convictions;
·Further drug offending would inflict a broad range of harm on the community including physical harm, mental illness, violence, chronic health issues, and loss of productivity and engagement with the criminal justice system.[65]
[65] RSFIC 2, page 10.
·There is insufficient evidence to support a conclusion that the Applicant is rehabilitated and instead he should be found to present a significant and unacceptable risk noting:[66]
[66] RSFIC 2, pages 11-13.
oThe sentencing judge’s view that the Applicant’s offending was not an isolated event and that the Applicant had been routinely disobeying the law for a significant period of time;
oThe Applicant’s significant and lengthy history of drug use;
oIn relation to his drug use, his abstinence has only been tested in the community to a limited extent and has not been tested absent bail conditions. It is notable that the Applicant only commenced drug rehabilitation approximately six months after his visa was cancelled;
oThere is no evidence that the Applicant has undergone rehabilitation to address the other factors he says contributed to his offending;
oHis prosocial supports have not been protective factors in the past and therefore provide an unreliable protection against reoffending in the future;
oWhile parole was granted, the conditions of parole are unknown; and
oLess weight should be given to the Department of Justice assessment that the Applicant presents a low risk of reoffending as the source and method of the assessment is unknown and in any event even a low risk of reoffending is unacceptable.
·While the Applicant has ties to Australia through his immediate family in Australia including his partner, step-children, adult children and grandchildren, who will be adversely impacted by non-revocation, the rest of his family reside in New Zealand and he did not spend his formative years in Australia.[67] Only slight weight should be afforded to this consideration.
·The best interest of the Applicant’s step-children weighs in the Applicant’s favour only to a limited extent because: he only commenced a relationship with their mother in 2019 and has described this relationship as ‘rocky recently’;[68] they have had long periods of absence from him; he is only likely to play a positive role in the children’s lives to the extent he is able to abstain from drugs; the mother fulfills a parental role; and there is no evidence of the financial support the Applicant provides to the children. The best interest of the Applicants grand-children, nieces and nephews may only weigh in the Applicant’s favour to a limited extent because there have been long periods of absence and the Applicant’s relationship with the children is non-parental;[69]
·The expectations of the Australian community weigh heavily against revocation noting the Applicant did not spend his formative years in Australia and would not be afforded tolerance for his offending on that basis; and[70]
·The only other relevant consideration is the extent of impediments if removed. As the Applicant has voluntarily returned to New Zealand the consideration is not relevant. In any event, any difficulty the Applicant may face in establishing himself in New Zealand would only be temporary as he has extended family that he has said would support him there and there is no evidence of him having any mental health conditions. There are no language or cultural barriers for the Applicant in new Zealand and he will have access to the same supports as other citizens.[71]
[67] R1, page 14.
[68] R1, page 386.
[69] R1, pages 14-15.
[70] R1, page 17.
[71] R1, page 17-18.
Protection of the Australian Community

The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to 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 by non-citizens. In this respect, the Tribunal is directed to 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, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[72]
[72] See also Direction No 99 para 8(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also 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.
The Applicant submitted that his offending, while serious, was not so serious as to require this consideration to weigh heavily against revocation.[73]
[73] R1, page 299.
The Respondent contended that the protection of the Australian community weighed heavily against revocation.[74]
[74] RSFIC 2.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[75] In doing so, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[76]
[75] Direction No 99 para 8.1(2).
[76] Direction No 99 para 8.1.1(1)(a) and see also Direction No 90 para 8.1(2)(a).
The Applicant’s offending history was outlined above.
The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’.
In the Tribunal’s view, none of the Applicant’s crimes or offences as an adult and as evidenced before the Tribunal are properly characterised as ‘violent crimes’, ‘sexual crimes’ or ‘crimes of a violent nature against women or children’ or any of the other categories highlighted to be serious or very serious.
In the Tribunal’s view, it is clear that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of the Direction. Such crimes would include serious drug offences. Notwithstanding none of the Applicant’s offending falls within the categories outlined in par 8.1.1(1)(a) or 8.1.1(1)(b) of Direction No 99, in the Tribunal’s view the Applicant’s record of offending is serious for the reasons detailed in the sentencing remarks above and discussed further below.
The convictions for which the Applicant was sentenced in September and October 2021 were his first recorded convictions since 2010. No other ‘conduct’ was raised by the Respondent as relevant to this consideration, outside the general circumstances of the Applicant’s offending which gave rise to the numerous convictions in 2021. However, as noted earlier, the sentencing judge in the District Court noted that the offending was very serious and not an isolated event. Her Honour observed that the Applicant had been ‘routinely disobeying the law for a significant period of time’. Further in assessing his criminal history the court noted:[77]
You have only a minor criminal record relating to traffic offences…Balanced against that, however, the State draws to my attention the fact that you have been routinely using drugs and dealing in drugs over a long period of time. So you don’t quite get the benefit that a first offender who comes to the court with a good record would otherwise get…only terms of immediate imprisonment are appropriate for people who deal in methylamphetamine...
[77] R1, page 351.
The Applicant was sentenced to multiple terms of imprisonment, albeit to be served concurrently. This included for weapons and firearms offences. Terms of imprisonment are the last resort in the sentencing hierarchy and noting the Applicant was sentenced to terms of imprisonment notwithstanding his lack of prior offending, the Tribunal considers his sentences to be a reflection of the serious nature of the offending.[78]
[78] Direction No 99, para 8.1.1(1)(c).
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness. The Applicant submitted that the offences were all committed in a single instance and that prior to that, the Applicant did not have any history of offending. The Tribunal acknowledges the Applicant’s lack of significant prior offending and considers this weighs in his favour. In the Tribunal’s view his offending could not be described as frequent. Further, it is the Tribunal’s view that as the offences relate to a single incident, they cannot be said to reflect a trend of increasing seriousness in offending. Accordingly, this factor does not contribute to the assessment of the overall seriousness of the offending.[79]
[79] Direction No 99, para 8.1.1(1)(d).
The Tribunal is also to have regard to the cumulative effect of repeat offending.[80] Noting the District Court’s assessment that the Applicant had been acting in breach of the law for a significant time, and recognising the breadth of the convictions in both courts, the Tribunal considers that there was a cumulative impact of the Applicant’s offending which contributes to the assessment of its seriousness. The multiple offences, the variety of illicit substances and prescription drugs prescribed to others, and the possession of firearms and ammunition can only be seen as cumulatively having an adverse and harmful impact on the community.
[80] Direction No 99, para 8.1.1(1)(e).
The Tribunal notes the concerns raised in the Magistrate’s Court sentencing remarks and finds the Applicant’s possession of firearms and ammunition while involved in drug dealing to be a cause for concern. The Tribunal considers this adds to the assessment of the Applicant’s offending as serious. In this regard the Tribunal notes the matters raised in the previous Tribunal record regarding inconsistent evidence relating to the possession of the firearms.[81] Records indicate that when questioned following the search of his home on 30 March 2021, the Applicant told police that the rifle which was identified as having been stolen in a burglary in 2015 and pump action shotgun which had its serial number ground off had been in his possession for more than five years.[82] However, during cross-examination before the previous Tribunal, the Applicant testified that he purchased both firearms a few weeks before his arrest and after he started selling drugs.[83] He said he had purchased the weapons from an unnamed source to hunt rabbits from but had not used either weapon. In her evidence before the previous Tribunal, Ms Green said that the Applicant had told her that some people had left the guns at his house and had not picked them up.[84] The Tribunal shares the previous Tribunal’s concerns regarding the presence of unlicensed and unsecured in the home and finds this conduct and offending to be serious.
[81] R1, page 352.
[82] R1, pages 192-193, 396-398.
[83] R1, pages 396-398.
[84] R1, page 450.
The Tribunal notes the Applicant had several other offences on his record including drink driving offences in 2006 and 2010 and a conviction for failing to obey an order which is spent. Given the minor nature of the traffic offences, the fact the other offence is spent, and the gap since any similar offending, the Tribunal does not consider these contribute negatively to the overall assessment of the Applicant’s conduct and offending.
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing any prior criminal offending.[85] The Minister submitted that the Applicant provided false and misleading information to the Department by virtue of his incoming passenger cards which incorrectly stated that he did not have any criminal convictions.[86] In previous submissions the Applicant explained that at that time (2017/2018) he only had 2 traffic convictions and a spent criminal conviction and therefore did not provide false or misleading information.[87] It is not clear to the Tribunal on what basis the Applicant’s convictions for drink driving would be differentiated from criminal convictions for the purpose of the passenger card declarations. They were offences dealt with by the courts and recorded as criminal convictions. In any event, given the minor nature of the Applicant’s offences to date at the time of the declarations, the Tribunal does not consider the failure to disclose the traffic convictions adds to the assessment of the seriousness of the Applicant’s conduct or offending.
[85] Direction No 99, para 8.1.1.1(1)(f).
[86] R1, page 71-71.
[87] R1, pages 299 and 458-459.
In the Tribunal’s view having regard to the evidence and the comments and assessment of the offending by the courts, the Applicant’s offending was serious and weighs against revoking the cancellation of his visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 99 states, in part:[88]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to 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.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers 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). …
[88] See also Direction No 99 para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[89] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[90]
[89] Direction No 99 para 8.1.2(2)(a).
[90] Direction No 99 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[91]
[91] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[92]
[92] Direction No 99 para 8.1.2(2)(a).
The Applicant has been convicted of possession of a range of illicit and prescription drugs. He was convicted of cultivating cannabis and of possessing methylamphetamine for sale. He was also convicted of possession of unlicenced firearms and ammunition and a prohibited weapon. He conceded that the harm which would be caused to the community were he to reoffend would be serious.[93]
[93] R1, page 299.
The Minister cited the Federal Department of Prime Minister and Cabinet’s 2015 Final Report of the National Ice Taskforce, which describes the ‘distinct problem for society’ caused by methylamphetamine:[94]
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
[94] The Tribunal notes it was unable to access the link to the report but accepts the quote cited by the Minister.
If the Applicant were to reoffend ins a similar way, there is the potential to cause a broad range of harm to the Australian community including physical and psychological harm to users, financial harm and costs to criminal justice system, all of which are serious and have significant cost to the broader community. The cultivation, selling and supply of prohibited drugs perpetuates the market of illicit drugs and the social harms it causes. The harm caused by such offending is serious.
The Tribunal considers the nature of the harm which would be caused were the Applicant to reoffend in a similar manner to be serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[95]
[95] Direction No 99 para 8.1.2(2)(b).
The Applicant submits he will not reoffend. He stated that he is remorseful and has done everything he can to show he wants to be a productive member of the community. In his statement to the Tribunal he submitted:[96]
I am not trying to defend my actions in any way, I made very poor choices without considering the negative impact I was having on the community. I am truly remorseful. I complied with police upon my arrest, pleaded guilty at the first opportunity, was a model prisoner and a model detainee. I obtained parole at the first opportunity and am five months into a six-month parole period here in New Zealand.
I have voluntarily applied for every drug treatment and rehabilitation as it became available to me. I was drug tested in Acacia Prison in Yongah Hill Detention Centre, random tested at work and at my corrections facility as part of my parole here in New Zealand and passed all tests.
[96] A1.
In submissions from his then representative it was contended that the Applicant has been clean since March 2021 including 5 months in the community prior to sentencing. He had completed a substance abuse program (ADEPT), attended 11 Narcotics Anonymous (NA) meetings and attended counselling in prison.[97] He has a strong work history and a close-knit family who can offer prosocial support. He is remorseful for his offending and gained insight into his offending and its consequences including the prospect of removal. He was granted parole which may be said to reflect an assessment that he was an acceptable risk to the community.[98] It was contended there is a low likelihood of the Applicant reoffending.
[97] R1, page 299.
[98] R1, page 300.
The Applicant claimed his offending had been caused by drug use and driven primarily by a desire to fund his methamphetamine use.[99] He submits that his drug use began after a series of traumatic events in his life including the breakdown of his marriage, the death of his father in 1982, the death of his mother in 2018, his children leaving home in 2018-2019, and the effect of COVID on his business. [100] The Tribunal notes the sentencing judge found no circumstances of mitigation including any mental illness which might explain the Applicant’s offending, noting the Applicant had been using drugs for some time but that use became really problematic in 2020 when his children left home.[101]
[99] R1, pages 304-305.
[100] R1, G10 page 55.
[101] R1, G5, page 30.
When asked why the Tribunal should be confident the Applicant would not reoffend, the Applicant stated:[102]
Well, I’ve – you know, I think most of my offending – well, all of my offending was a result of my drug use and my addiction to meth was pretty much my downfall really. It cost me everything that I’ve ever worked for in my whole life because I lost my house, I’ve actually lost my citizenship, I’ve lost all of the financial – everything I’ve ever worked for in my whole life. I’ve sort rocked up here with 23 kilos of clothes and $70 I think when I come back, which is pretty much – and my – I was lucky my family – my sister, Steph, was financially supportive of me and I pretty much gave much of what I had – gave it away while I was in prison, just to my kids or my nephews and that, just to the family and obviously I’ve – I’m sort of waiting to see what the outcome of this is because I haven’t really – I try not to – I don’t know whether to settle here or not. So I’m sort of up in the air at the moment because it really depends on your decision on whether I set up here or whether I go back to Perth and, you know, I realise that that drug is my poison, you know, and it’s just done so much detrimental damage to me and my family, it’s – yeah, it’s been really bad. So…..
No, I just – like I said, it’s pretty much my Achilles heel, you know. But I realise that now and I guess I’ve brought a lot of shame on my family and me as well and a big strain on my relationship with my kids and my siblings and I’ve obviously been a financial burden on them as well and – but I guess it would be cliched of me to say I’ve learned my lesson, but I’m doing whatever I can to prove – to prove to the court that I do intend to stay off it and drug free and not to reoffend. I’ve been here five months now and, you know, if a speed sign says ‘Go 50’ I go 40, you know. I’m pretty determined to make things right and that’s the only way I can see of doing it, is to work hard and, you know, try and provide for and make up for lost ground. Yes.
[102] Transcript, page 26.
The evidence indicates the Applicant’s had a history of significant drug use. In cross examination before the previous Tribunal the Applicant stated that the smoking implements, and drugs found at his home on 30 March 2021 including – cannabis, cocaine, LSD, DMT, methylamphetamine, MDMA, oxycodone, psylocibin mushrooms, alprazolam, diazepam, circadin (melatonin), quetiapine (seroquel), adderall and dexamphetamines – were all for his personal use.[103] On 17 February 2021, the Applicant suffered a heroin overdose and stopped breathing. Emergency services responded and revived the Applicant.[104] The Applicant’s medical Drug and Alcohol History recorded at prison on 6 April 2021 notes that the Applicant reported amphetamine use everyday, mainly smoking it and sometimes injecting.[105]The Applicant accepted this was accurate.[106]
[103] R1, Pages 401-407.
[104] R1, pages 206-207; R1, pages 415-416.
[105] R1, page 262.
[106] R1, page 410.
The Applicant’s drug use was explored in his evidence before the previous Tribunal.[107] In that evidence he indicated that he probably started cannabis use in his late teens through until 1995, and then started again in 2017/2018 and increasing his use until 2020. He used cocaine on occasion between 2020 and March 2021. He used LSD once every two months from 2017 until March 2021 and psilocybin mushrooms throughout the entire time. He initially claimed to have first used methylamphetamine in 2019/2020 but later revised this to 2015. He maintained he did not do drugs in periods when he was working on the mines.
[107] R1, pages 204-209.

The Applicant described the reasons for his offending to the Tribunal as follows:[108]
SENIOR MEMBER: So what do you understand to be the reasons that you had offended in the past?
MR REWHA: I was mainly my drug addiction, for meth.
SENIOR MEMBER: And how was it that you think you ended up with a drug addiction?
MR REWHA: I think it was a gradual thing. I always – well, I sort of smoked a bit of weed, but I obviously I couldn’t do that because of work, because I’ve worked in the mines, and you know, it just – I don’t know, it sort of – I sort of used it recreationally at first and then it just got to the point where I was using every day and I ended up trying to subsidise my income so I could pay for my habit and – yes, like I said, I thought I had, you know, a handle on it but obviously – obviously I was just kidding myself, you know.
[108] Transcript, page 30.
Material produced on summons from Western Australian authorities indicated the Applicant had been assessed to be a low risk of reoffending in the context of suitability for prison treatment programs and was not recommended for criminogenic programs but was recommended for assessment for addictions treatment.[109] In an Individual Management Plan record created on 10 March 2022 it is recorded under ‘Rehabilitation and Reintegration’ that:[110]
A Risk of Reoffending - Prison Version (RoR-PV) assessment was administered by a Acacia Treatment Assessor. Mr Rewha is not recommended for criminogenic programs at this time due to low risk of reoffending.
Addictions Offending: AOD Further Assessment - Not Currently Offered.
[109] R1, pages 281-282.
[110] R1, page 281.
The record indicates that for ‘general offending’ the ‘outcome’ was ‘not required’ with a status of ‘low risk/need’. For ‘addictions offending’ the ‘outcome’ was ‘required’ and the course was ‘AOD further assessment’ however the status was ‘not currently offered’.[111] This appears to indicate the low risk assessment was with respect to general offending as opposed to addictions offending though the distinction between the two is not clear from the material. A note in another record indicates that the reference to addictions offending was made to facilitate the Applicants consideration for the Solid Steps program given identified substance use issues but that as that program was voluntary ‘the requirement should not have been included’ and should be changed to ‘no longer required.’[112]
[111] R1, page 282.
[112] R1, page 271.
When it was put to the Applicant at the hearing that the basis for the assessment was not clear and that an assessment of his suitability for treatment programs might not be a reliable indicator of longer term risk in the context of the Tribunal’s task of ascertaining risk, he said that the assessment was to see if he had treatment needs and ‘…they said I didn’t have any treatment needs but I undertook the treatment anyway because you know, I know I needed help…’ [113]
[113] Transcript, page 31.
While the basis for the assessments is not clear, the Tribunal accepts it provides evidence in support of the Applicant’s claims that he demonstrated low criminogenic needs in the prison context and that it provides support for his claim that he presents a low risk of reoffending.
The Applicant indicated he undertook a number of voluntary programs to address addiction including the NA meetings, undertaking the ADEPT program (for methylamphetamines addiction) and counselling. The Applicant testified that he completed the ADEPT program on 1 June 2022 and was paroled in July 2022. He has not completed any further treatment of programs since that time. [114]
[114] Transcript, pages 31-32.
There was no assessment or report on the impact of any programs undertaken by the Applicant on his risk of reoffending and prospects for maintaining his commitment to abstaining from drugs in the community. A letter from Cyrenian House, which ran the ADEPT program, dated 2 November 2022 noted:[115]
Mr Rehwa engaged well in sessions and presented as motivated to abstain from illegal substance use and pursue a prosocial life.
The letter also notes that should Mr Rewha’s visa be re-instated, he will be eligible to re-engage with the Alcohol Programs and Treatment through-care counselling service in the community and attend groups within their service for additional support. The Tribunal considers that the Applicant’s voluntary participation in these programs weighs in his favour.
[115] R1, page 313.
The Applicant offered evidence from New Zealand Department of Corrections dated 3 October 2023 which noted his compliance with the condition on his Returning Offenders Order which expired in December 2023. The letter noted that the Applicant had ‘engaged well’ with his order and met its special standards and conditions noting he was subject to random alcohol and drug testing and passed all tests undertaken. The letter noted he had been working since his return on a fixed term contract with possibility of extension.[116] The Tribunal considers his compliance with orders in the community weighs in his favour. However, the Tribunal considers the supervisory effect of random drug testing acts as a protective factor against a return to drug use and notes such requirements are no longer in place. This may elevate the risk of the Applicant returning to reliance on drugs, particularly in the absence of any program supports or counselling for which at present it appears he has no immediate plans to access.[117]
[116] A4.
[117] Transcript, page 30.
With respect to any future treatment, the Applicant indicated he would have liked to have undertaken further rehabilitation in New Zealand but it was expensive and he needed to work. When asked by the Tribunal what he thought his further treatment needs were he said:[118]
SENIOR MEMBER: In terms of rehabilitation, what if anything, do you think your needs are? Do you feel like you rehabilitation or ongoing support?
MR REWHA: I just feel I need to stay busy. Yes, so, you know, like keep on – keep up employment. Obviously, it’s no big deal because we finish on Friday. It’s probably a little bit close to Christmas for me to – so I’ll probably have to find something over Christmas because I’m not too sure when this other job stars or, you know, they haven’t really got the go ahead for it yet, so until that stars work, but just – just to stay busy, you know.
[118] Transcript, page 30.
The Minister submitted that the Applicant’s treatment progress was uncertain and that it was not known what his ongoing treatment needs were. This causes a concern with respect to the risk of reoffending. Further, it was contended that the Applicant was relying on prosocial support from his family in the community. However, members of the Applicant’s family became aware of his drug use prior to his arrest,[119] including that he had suffered a drug overdose, and while they expressed disapproval of his activities their support was not sufficient to curb his drug taking or offending in the past. The Tribunal agrees with these submissions. Given the Applicant was cultivating drugs in and selling drugs from his home and suffered an overdose and hospital admission, the Tribunal considers the awareness of the Applicant’s prosocial supports of his prior substance abuse causes a concern regarding the capacity of those supports to be an effective protective factor against reoffending in the future.
[119] R1, pages 49, 67, 456.
Further, the Tribunal notes despite Ms Green encouraging him to seek rehabilitation or counselling after that overdose,[120] the consequences of the laying of charges following the search in March 2021 and the fact he was released on bail, the Applicant did not seek treatment to address his drug addiction or offending behaviour until after his imprisonment. This calls into question his insight into his offending and the impact of his drug use.
[120] Transcript, page 67.
Notwithstanding this concern, the Tribunal found the Applicant’s remorse and commitment to changing his behaviours to be genuine. Since his arrest he has demonstrated a capacity to refrain from drugs and commit to rehabilitation. There is limited evidence as to the extent that rehabilitation has been effective, particularly once the protective factors of parole are no longer in place. However, the Tribunal accepts the Applicant’s desire not to reoffend and his acknowledgement of the destructive role drugs played in his life to be genuine.
However, the Applicant has a long history of illicit substance abuse including daily use of methylamphetamine, together with firearms convictions. There is very little to explain that offending beyond the sorts of stressors he may be expected to encounter in the community in the future. His commitment to refrain from drugs has so far been supported by the controlled environment and conditions of prison, immigration detention and parole. As such it cannot be said to have been fully tested in the community as to have eliminated the risk of future drug use or offending.
However, the Tribunal recognises the Applicant’s efforts at rehabilitation and is of the view that his recognition of the impact of his offending has reduced the risk that he will reoffend. The Tribunal finds that while there remains a likelihood the Applicant will reoffend, that risk is in the low range.
Conclusion on the protection of the Australian community
The Applicant has engaged in serious offending. The harm which would be caused were he to reoffend is serious and the is an ongoing risk, albeit a low risk, that he will reoffend.
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal that the Applicant has engaged in acts of family violence. Accordingly, this consideration is not relevant in the Applicant’s circumstances and the Tribunal gives it no weight.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3(1) of Direction No 99 provides that:
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.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or people who have an indefinite right to remain in Australia.
The Applicant first visited Australia for a short period before moving to this country on 10 May 1995 when he was 23 years of age.[121]
[121] R1, page 90.
The Minister accepted that a decision not to revoke the cancellation of the Applicant’s visa may have an adverse effect on members of his immediate family in Australia including his partner Ms Green, his two step-children, his sister and his two adult children. The Minister noted all other members of his immediate family reside in New Zealand.[122]
[122] RSFIC2.
The Tribunal has regard to the various submissions by members of the Applicant’s family and accepts that a non-revocation decision would have a significantly adverse effect on them. Olivia Papuni, the Applicant’s niece, wrote of the role the Applicant played as a familial leader and her hope he would resume this role in the future.[123] His sister Stephanie testified before the previous Tribunal that she, her sons and the family members would be upset if he returned to New Zealand and she would have to see him in New Zealand when she visited other family members there.[124]
[123] R1, page 314.
[124] R1, page 437.
The Applicant’s two adult children and his two grandchildren are resident in Australia. He raised his children as a single parent for 10 years after he and his wife split up and contends he is close to them. They both provided statements supporting the Applicant remaining in Australia.[125] His daughter, Danielle stated the Applicant is her best friend and she wants him to remain in Australia so that when she has children they can have a relationship with him. His son, Tawhiri, states that he wants the Applicant to be able to build a relationship with his grandchildren.
[125] R1, pages 78-80, 312.
The Applicant’s partner, Ms Green, described the difficulties she and her daughter’s are facing following the Applicant’s imprisonment and his return to New Zealand. She states that she has suffered emotionally and financially as have her daughters and that she hopes to travel to see the Applicant and to bring him back to Australia to settle with them.[126]
[126] A3.
The Applicant has lived in Australia for 28 years which, as he submits, is the majority of his adult life.[127] However, the Applicant arrived in Australia as an adult and was not ordinarily resident in Australia during his formative years.[128] The Tribunal finds the community would only afford the Applicant a limited amount of tolerance for his offending on this basis.
[127] Direction No 99, para 8.3(4)(a).
[128] Direction No 9, para 8.3(4)(a)(i).
The Applicant submitted statements from friend and community members speaking of his support for the local community, his volunteer coaching at Kalamunda Rugby Club, his work ethic and creative pursuits.[129] The Tribunal accepts he has made positive contributions to the Australia community through these activities.[130]
[129] Direction No 99, para 8.3(4)(a)(ii); R1, pages 80-84 and 86; A2, A5, A7; Transcript, pages 27-28.
[130] A7, A5.
In addition to the Applicant’s involvement with Kalamunda Rugby Club, Mr Lesley Lydiate noted the Applicant has supported his son through a difficult time noting ‘many of the boys [at the Rugby Club] looked upon Phil as a second father figure’.[131] Mr Adam Todd attested to the Applicant’s involvement with the Rugby Club and described him as being well-known and respected in the Western Australian Maori community. Mr Todd writes of the Applicant’s kindness and generosity.[132] Mr Russell Rath, a friend since 2015, stated that he and the Applicant shared similar interests of music, rugby and family, and had both worked in the mining industry and that he believes the Applicant would continue to be an asset to Australia.[133] Annie Williamson, who has known the Applicant for 5 years and sells his metal artworks through her shop, writes that the Applicant is a kind and generous man and that he is a ‘good community member’.[134]
[131] A5.
[132] R1, G17, pages 80-81.
[133] R1, page 84.
[134] A6.
It is evident that the Applicant has strong ties to Australia through his children and grandchildren, partner, step-children, sister and extended family, his community activities, work and metal art business. He has had long periods in the community where it appears he has maintained a prosocial lifestyle, worked and ran a business, albeit it his offending was not a one off and he appeared to have disobeyed the law over a long period of time.
Overall, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weighs strongly in favour of the revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction No 99 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction No 99 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which are relevant to the current application include:[135]
·the nature and duration of the relationship between the child and the non-citizen, noting 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;
·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;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[135] Direction No 99 para 8.4(4)(a)-(e).
Other factors include any known views of the child and 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.[136]
[136] Direction No 99 para 8.4(4)(f)-(h).
In his Personal Circumstances Form and in written submissions to the previous Tribunal, the Applicant identified the following minor children in Australia whose best interests would be affected by the decision:[137]
·Miss E who is now 17 years old and Miss A who is almost 13 years old and are the daughters of the Applicant’s partner Ms Green who he describes as his step-children.
·Miss Z, the Applicant’s granddaughter who is almost 4 years old.
·Miss M, Miss MA, Mstr N and Mstr S, the Applicants grand-nieces and grand-nephews. Miss M is 13 years old, Miss MA is about 11 years old, Mstr N is around 15 years old and Mstr S is around 6 years old.
In addition, the Applicant now has a grandson, Mstr C who is Miss Z’s younger brother and is now a year old.[138]
[137] R1, pages 10, 50-52 and 300-301; Transcript pages 14, 17,-25
[138] A1.
At the hearing the Applicant also identified two nephews, the children of his sister Stephanie who live in Melbourne. He said the boys were teenagers but no other information was provided to indicate their best interests would be impacted by the decision. Testimony before the prior Tribunal suggests one of the boys would now be an adult and the other would be close to maturity.[139] As such their interests have been considered together with their mother in the context of the Applicant’s ties to Australia through extended family.[140]
[139] R1, page 437.
[140] Transcript, page 17.
The Applicant submitted that the best interests of his step-daughters, grandchildren and other relatives in Australia weigh strongly in favour of revoking the Cancellation Decision.[141]
[141] A1, A3; R1, page 300-301.
The Minister accepted the best interests of the children would weigh in favour of revocation but only to a limited extent having regard to their individual circumstances and relationships to the Applicant.[142]
[142] RSFIC2, pages 14-16.

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[173]
[173] Direction No 99 para 9.1.
While this consideration in Direction No 99 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[174]
·Refusal of other visa applications and cancellation of other visas;[175]
·A prohibition on applying for other visas;[176] and
·Periods of exclusion and special return criteria may apply.[177]
[174] Migration Act ss 189, 196, 197C, 198.
[175] Migration Act s 501F.
[176] Migration Act s 501E.
[177] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[178] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[179] As the Applicant has voluntarily departed from Australia the removal provisions do not apply to him.
[178] Migration Act s 15.
[179] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
No concerns other than those relating to the Applicant’s potentially permanent separation from family and friends and the challenges of resettlement in New Zealand were raised by the Applicant. Nor did he make any submissions that the legal consequences of the decision should weigh in favour of revocation.
The parties did not make representations with respect to the broader legal consequences of the decision. However, submissions with respect to other considerations, including on the extent of impediments to removal, proceeded on the basis that the Applicant’s return to New Zealand would be permanent, unless the cancellation was revoked, reflecting the legal consequences of cancellation under s 501.
The Tribunal accepts the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501. The Tribunal considers this consideration carries neutral weight in the Applicant’s case.
Extent of impediments if removed
Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of New Zealand. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Minister submitted this consideration was no longer relevant as the Applicant had returned to New Zealand on 7 June 2023 and the consideration is forward looking and directed to a situation if removed.[180] However, as the Applicant was being held in immigration detention as an unlawful non-citizen prior to his departure, the Tribunal does not regard this consideration as irrelevant merely because the removal of the Applicant is effected voluntarily. The consideration is directed at the impediments the Applicant faces in establishing himself in New Zealand and maintaining basic living standards. These matters arise regardless of whether the Applicant’s removal is voluntary.
[180] RSFIC2.
In any event the Minister accepted the Tribunal must consider the representations raised by the Applicant, including with respect to impediments. Further, the Tribunal notes that what will amount to an ‘other reason’ for the cancellation to be revoked is not constrained by the considerations detailed in Direction No 99.
The Applicant is 52 years old, was born and raised in New Zealand, attended school and completed a diesel mechanic apprenticeship in that county. He married in New Zealand, visiting Australia between 1991 and 1995 when he moved here with his then wife and son. Since he settled here in 1995 he has returned to New Zealand on nine occasions before returning there from immigration detention last year.[181] While there was information the Applicant may suffer from diabetes (type 2), hyper cholesterolaemia, obesity and herpes,[182] there was no information to suggest the Applicant was suffering from any physical or mental illness which were currently requiring treatment, of which could not be obtained in New Zealand, noting that while he stated he had depression and anxiety he told the Tribunal he was referring to how he felt and not a diagnosis.[183]
[181] R1, G23, pages 89-90, 433.
[182] R1, page 228.
[183] Transcript, page 27.
The Applicant has numerous family members who reside in New Zealand including his older brother, sisters, cousins, nieces and nephews.[184] His older brother, Chris Rewha who lives in New Zealand, submitted a statement in the context of his sentencing which provided some family history and which stated: [185]
Phil’s siblings have rallied together to support Phil and our extended whanau that live in Perth. All of Phil’s siblings have been in touch with him…to discuss with him a plan for the future.
[184] Transcript, page 13.
[185] R1, G13, page 65.
In written submissions to the previous Tribunal the Applicant accepted there was no impediment to establishing himself in New Zealand presented by his age, health, language or culture and that he would have the same economic and medical support available to him as other New Zealanders.[186] The Applicant submitted that:
the only real impediment to the Applicant establishing himself in New Zealand is that he will be separated indefinitely from much of his family, including his children and grandchildren. This will be a source of stress in his life that may impede his ability to establish himself and maintain a basic standard of living.
[186] R1, page 302.
In his statement and evidence to the Tribunal following his return to New Zealand, the Applicant stated that he was he was struggling to stay in touch with family in Australia due to the time difference and he was depressed and anxious due to separation from his family.[187] He also stated he faced challenges with employment because he didn’t have his tools and couldn’t afford to send them from Australia. He is working and living with his sister. He also stated he had wanted to do some further rehabilitation or counselling but had been unable to afford it and had been busy with work in New Zealand.
[187] A1; Transcript, page 9
The letter from New Zealand Department of Corrections, who have been supervising the Applicant’s completion of his Returning Offenders Order, noted that the Applicant has contract work in New Zealand and that he complied with his supervision requirements. The letter notes:[188]
It is evident to Mr Rewha’s managing Probation Officer that Mr Rewha, whilst trying to integrate back into the community has found his removal from his family in Australia has been very hard and he states his is causing him mental anguish and distress. Mr Rewha’s partner, children and grandchild continue to reside in Australia with no intention to move to New Zealand.
[188] A4.
The Tribunal accepts that the Applicant is facing some difficulty in re-establishing himself in New Zealand due to his separation from family. However, the evidence establishes that he is working, is supported by family and is financially supporting Ms Green and her daughters. The Tribunal also accepts that the Applicant’s feelings of depression or anxiety may worsen as a result of remaining in New Zealand and separation from family in Australia. However, there is no evidence that mental health supports would not be available to the Applicant in New Zealand should he need to access them. It is also clear he has the ongoing support of his siblings in New Zealand.
The Tribunal notes while the Applicant will suffer as a result of separation from his family there was evidence that Ms Green was planning to visit and that his sister Stephanie would visit him in New Zealand.
Overall, the Tribunal finds that the Applicant may continue to encounter difficulties in establishing himself in New Zealand but does not regard these difficulties such as would prevent him continuing to be able to maintain basic living standards in the context of what is available to other citizens of New Zealand.
The Tribunal finds that the extent of impediments if removed weighs in favour of revocation but that only slight weight is afforded to this consideration in the Applicant’s circumstances.
Impact on victims
Paragraph 9.3 of Direction No 99 requires the Tribunal to consider the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information is available and the Applicant has been afforded procedural fairness.
There is no information before the Tribunal with respect to the impact of the decision on victims or on members of the Australian community more generally, aside from the risks of harm to the community, which are discussed above in the context of the protection of the Australian community.
The Tribunal finds this consideration weighs neither for nor against revocation in the Applicant’s circumstances and affords it neutral weight.
Impact on Australian business interests
Paragraph 9.4 of Direction No 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
While the Applicant indicated he had good prospects of employment in Australia and had been running a small business manufacturing metal garden sculptures[189] and his previous employers, Mr Todd of Todd’s Furniture and Auctions, Andrew Bendall of Redpath Mining, provided statements in support of the Applicant,[190] there was no information or submissions from the Applicant to suggest that his removal from Australia would adversely impact Australian business interests.[191]
[189] A7.
[190] R1, G18, pages 80-81, 82-83, 86.
[191] R1, page 297-303.
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99).[192] Relevantly, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[193] While the Court was considering Direction No 90, it’s observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[194]
[192] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[193] [2023] FCAFC 138.
[194] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction No 99 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation and affords the consideration strong weight in the Applicant’s circumstances.
The consideration of family violence was not relevant in the Applicant’s case.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds strong weight should be afforded that consideration in the Applicant’s case.
The best interests of the children identified as being impacted by the decision weigh in favour of revocation albeit to different degrees. Overall, the Tribunal considers moderate weight should be afforded this consideration in the Applicant’s circumstances.
The expectations of the Australian community, weigh against revocation and the Tribunal finds this consideration should be afforded strong weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that the legal consequences of the decision weighs neither for nor against revocation and should be afforded neutral weight in the Applicant’s case. The extent of impediments if removed weigh slightly in favour of revoking the cancellation of the Applicant’s visa. The impact on the victims and the impact on Australian businesses weigh neutrally in the Applicant’s circumstances.
Paragraph 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. Nothing before the Tribunal would cause the Tribunal to find that that general principle should not apply in the Applicant’s case. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children and the other consideration of the extent of impediments if removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the decision under review.
DECISION
The decision of the delegate of the Minister dated 19 October 2022 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under section 501CA(4) is affirmed.
DECISION
The decision of the delegate of the Respondent dated 19 October 2022 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed

I certify that the preceding 208 (two hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

....................[Sgd]....................................................
Associate
Dated: 5 June 2024

Date of hearing: 27 November 2023

Applicant: Self-represented

Solicitors for the Respondent: Ms Daphne Jones-Bolla, Sparke Helmore Lawyers
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 11 October 2021[195] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 15 November 2022.[196]
[195] R1, pages 23-25.
[196] R1, pages 168-172.

Conviction Date	Court	Offence	Offence Date(s)	Court Result
1.	1 October 2021	Midland Magistrates Court	Cultivate a Prohibited Plant	30 March 2021	$300 fine; order for destruction
2.	1 October 2021	Midland Magistrates Court	Possess a Prohibited Drug (Cannabis)	30 March 2021	$300 fine; order for destruction
3.	1 October 2021	Midland Magistrates Court	Possess a prohibited drug (MDMA)	30 March 2021	$300 fine; order for destruction
4.	1 October 2021	Midland Magistrates Court	Possess a prohibited drug (Methylamphetamine)	30 March 2021	$300 fine; order for destruction
5.	1 October 2021	Midland Magistrates Court	Possessed a Prohibited Drug (Cocaine)	30 March 2021	$300 fine; order for destruction
6.	1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction
7.	1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction
8.	1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction
9.	1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction
10.	1 October 2021	Midland Magistrates Court	Possessed a prohibited drug	30 March 2021	$300 fine; order for destruction
11.	1 October 2021	Midland Magistrates Court	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	30 March 2021	$300 fine; order for destruction
12.	1 October 2021	Midland Magistrates Court	Possessed drug paraphernalia in or on which there was a prohibited drug or plant;	30 March 2021	$300 fine; order for destruction
13.	1 October 2021	Midland Magistrates Court	Possession Of Drug Or Substance	30 March 2021	$300 fine; order for destruction
14.	1 October 2021	Midland Magistrates Court	Unlawfully possessed a Controlled or Prescription drug	30 March 2021	$300 fine; order for destruction
15.	1 October 2021	Midland Magistrates Court	Unlawfully possessed a Controlled or Prescription drug	30 March 2021	$300 fine; order for destruction
16.	1 October 2021	Midland Magistrates Court	Unlawfully possessed a Controlled or Prescription drug	30 March 2021	$300 fine; order for destruction
17.	1 October 2021	Midland Magistrates Court	Unlawfully possessed a Controlled or Prescription drug	30 March 2021	$300 fine; order for destruction
18.	1 October 2021	Midland Magistrates Court	Unlawfully possessed a Controlled or Prescription drug	30 March 2021	$300 fine; order for destruction
19.	1 October 2021	Midland Magistrates Court	Unlicensed Person Possess Firearm/Ammunition	30 March 2021	2 months imprisonment (concurrent); order for destruction
20.	1 October 2021	Midland Magistrates Court	Unlicensed Person Possess Firearm/Ammunition	30 March 2021	2 months imprisonment (concurrent); order for destruction
21.	1 October 2021	Midland Magistrates Court	Unlicensed Person Possess Firearm/Ammunition	30 March 2021	$300 fine; order for destruction
22.	1 October 2021	Midland Magistrates Court	Unlicensed Person Possess Firearm/Ammunition	30 March 2021	$300 fine; order for destruction
23.	1 October 2021	Midland Magistrates Court	Unlicensed possession of dangerous goods	30 March 2021	$300 fine; order for destruction
24.	14 September 2021	Perth District Court	Having ready access to both weapons and illegal drugs	30 March 2021	2 months imprisonment (concurrent)
25.	14 September 2021	Perth District Court	Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine)	30 March 2021	2 years imprisonment (concurrent); order for destruction
26.	14 September 2021	Perth District Court	Possession of stolen or unlawfully obtained property	30 March 2021	4 months imprisonment (concurrent); forfeiture order
27.	29 December 2010	Midland Magistrates Court	Exceed 0.05g alcohol per 100ml of blood	26 November 2010	$250 fine; Mdl disqualified 3 months
28.	14 October 2010	Perth Magistrates Court	Fail to Obey Order Given by an Officer	24 September 2010	$150 fine
29.	3 October 2006	Rockingham Magistrates Court	Excess 0.08%	13 September 2006	$500 fine; Mdl disqualified 4 months

Date of hearing:	27 November 2023
Applicant:	Self-represented
Solicitors for the Respondent:	Ms Daphne Jones-Bolla, Sparke Helmore Lawyers