Rewiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2023] AATA 3001

Rewiri and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3001 (20 September 2023)

Division:GENERAL DIVISION

File Number(s):      2023/4921

Re:Himi Mau Rewiri

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Kira Raif

Date:20 September 2023

Place:Sydney

The Tribunal sets aside the reviewable decision and substitutes a decision that the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa is revoked.

.....................[SGD]...................................................

Senior Member Kira Raif

Catchwords – MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – failure to pass character test – where Applicant engaged in serious violent and drug-related offending - whether there is another reason why visa cancellation should be revoked – protection of the Australian community – nature and seriousness of Applicant’s conduct to date – strength, nature and duration of ties to Australia – best interests of minor children – expectation of the Australian community – legal consequences of decision – impediments to removal – decision under review set aside and substituted

Legislation

Migration Act 1958 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500.
Pearson v Minister for Home Affairs [2022] FCAFC 203
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA

REASONS FOR DECISION

Senior Member Kira Raif

20 September 2023

BACKGROUND

1. This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa previously held by the Applicant.

2. The Applicant was born in November 1987 in New Zealand. He first travelled to Australia in May 2003 with his family and has not travelled to New Zealand since that time.

3. Between 2009 and 2022 the Applicant was convicted of multiple offences which are set out below. On 7 October 2022 the Applicant’s visa was mandatorily cancelled. It was determined that the Applicant was affected by the judgment in the Full Federal Court in Pearson v Minister for Home Affairs [2022] FCAFC 203. Following the enactment of the Migration Amendment (Aggregate Sentences) Act 2023 (Cth), the Applicant’s aggregate sentence was considered to be treated as a term of imprisonment of 12 months or more. That Act provided that the earlier exercise of the cancellation power was valid

4. The Applicant had made a request to revoke the cancellation. In July 2023 a decision was made under subsection 501CA(4) not to revoke the cancellation. The Applicant is seeking review of that decision.

5. For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the Applicant’s visa should be set aside and substituted with the decision that the cancellation of the visa should be revoked.

   Relevant Law

6. Subsection 501(3A) of the Act relevantly states:

   (3A) The Minister must cancel a visa that has been granted to a person if:

   (i)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

7. Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.

8. Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:

   (4)The Minister may revoke the original decision if:

   (a)    the person makes representations in accordance with the invitation; and

   (b)    the Minister is satisfied:

   (i)     that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

9. Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.

10. The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:

    (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))…

11. Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

12. On 23 January 2023, Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 99’) was signed, coming into effect on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.

13. Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at paragraph 5.2(2) of Direction 99 states that:

    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.’

14. The primary considerations which are set out in clause 8 of Part 2 of Direction 99 are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

15. The other considerations, which are not exhaustive, are set out of clause 9 of Direction 99:

    a)Legal consequences of the decision;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)impact on Australian business interests.

16. Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[1]

    ‘Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply’”[2]

    [1] [2018] FCA 594.

    [2] Ibid, [23].

17. While these comments were made in relation to the earlier Direction, they apply equally in the present case.

18. In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:

    (a)    does the Applicant pass the character test, as defined by section 501 and, if not;

    (b)    is there another reason why the original decision should be revoked.

    DOES THE APPLICANT PASS THE CHARACTER TEST?

19. The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

20. Information before the Tribunal indicates that the Applicant had been convicted of the following offences:

16/12/09	Common assault	Fine $700
01/07/11	Common assault	9 months good behaviour bond
27/10/14	Possess prohibited drug	Fine $600
25/11/16	·     Destroy or damage property <= 2000 ·     Stalk / intimidate intend to cause far physical etc harm (personal)	No conviction recorded, good behaviour bond for 2 years
05/06/18	Drive while license suspended (1st offence)	Fine $600 and license disqualification for 3 months
18/09/20	·     Deal with property proceeds of crime <$10000 ·     Possess prohibited drug	12-month community correction order (no penalty for possess prohibited drug)
05/08/22	·     Supply prohibited drug >= large commercial quantity ·     Supply prohibited drug > indictable < commercial quantity ·     Possess prohibited drug	3 years and 4 months imprisonment (aggregate)

1. The Tribunal finds that in August 2022 the Applicant has been sentenced to a term of imprisonment of 40 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.

   IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

2. The Applicant concedes that some of the considerations, such as the protection of the community and the expectations of the community, weigh against the revocations but are not determinative. The Applicant submits that other consideration weigh in favour of the revocation, such as the best interests of his daughter, the extent of impediment if he is removed and the connections to Australia. The Applicant submits that there is a low risk of reoffending and given his circumstances, the factors in favour of the revocation outweigh others.

3. The Respondent submits that the Applicant does not pass the character test. The Respondent submits that the protection and expectations of the Australian community weigh strongly against revocation and while other consideration may weigh in favour, those that weigh in favour of the revocation outweigh other considerations.

4. The Tribunal’s considerations are set out below with regard to Direction 99.

   PRIMARY CONSIDERATIONS

   Protection of the Australian Community

5. Paragraph 8.1 of Direction 99 provides in part as follows:

   8.1   Protection of the Australian community

   (1)When considering protection of the Australian community, decision-makers should keep in mind that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens….

   (2)Decision-makers should also give consideration to:

   a)the nature and seriousness of the non-citizen’s conduct to date; and

   b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.

   The nature and seriousness of the Applicant’s conduct to date

6. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.

7. In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the Applicant’s evidence about the circumstances of his attending and the sentencing remarks.

8. In his statement to the Tribunal dated 6 September 2023 the Applicant states, in relation to the 2009 offence, that he was at home when two unknown men outside of his house were harassing his mother. He went outside to help his mother and the situation escalated. The Applicant states that he and his brother got into a fight and the police attended. In oral evidence the Applicant stated that he went to support his mother, punches were thrown by both sides, and he was convicted of common assault.

9. In relation to the 2011 offence, the Applicant states that he was in a pub and a man was threatening a pregnant woman with a knife. He stepped in to the help her and had an altercation with the man, punching him. The police told him that he should have stayed out of it. In oral evidence the Applicant also stated that he intervened by defending the woman who was threatened.

10. In relation to the 2014 offence, the Applicant states that he was fined for possessing two MDMA pills at a music festival.

11. In relation to the 2016 offending, the Applicant states that he was picking up a friend from her home. Her husband, who had a history of violence against her, became aggressive and would not let her leave. The Applicant states that he tried to help his friend get out of the house and her husband slammed the door into his face and the glass broke. He pleaded guilty and the charges were dismissed without conviction.

12. It is of some concern to the Tribunal that in relation to the 2009, 2011 and 2016 offending the Applicant appears to blame others, or the circumstances, for his offending. Although he did plead guilty, the Applicant appears to have limited insight into his own offending on these occasions.

13. With respect to the 2018 offending, the Applicant states that he had sold his car but had not submitted the papers to transfer the ownership, so the car continued to be registered in his name. The Applicant states that the owner incurred fines which were attributed to him without his knowledge and as the fines were not paid, his license was suspended.

14. With respect to the 2020 and 2022 offending, the Applicant states that these convictions are connected. In 2020, the Applicant states that he was in possession of a prohibited drug (cocaine) and received a community corrections order for dealing with proceeds of crime ($6000 cash). Regarding the2022 offending, he was convicted of supplying an indictable quantity of prohibited drug and supplying a commercial quantity of prohibited drug. According to the Applicant, during this period, he was ‘hanging out’ with the wrong people — whom he alleges were drug suppliers at the time — and using drugs with them. On occasions he went with a friend to a storage unit to get and use cocaine. He was later arrested with his friend, and both had cocaine on them. The Applicant states that his friend asked him to hold his wallet, and the police found $6000 cash in it. The Applicant states that he was later charged with more serious offences because his fingerprints and DNA had been found on some boxes in the storage unit, presumably when he moved or sat on them. The Applicant states that he understands the consequences of his actions, is remorseful about his offending and is committed to rehabilitation. 

15. The Applicant told the Tribunal that he was aware that the person he was with was supplying drugs and that there were drugs in the boxes, but he states that he himself had no role in supplying drugs. The Applicant states that he pleaded guilty because of his addiction and because he had turned a blind eye to what was going on. The Applicant states that in the future, he would stay away from people like that.

16. The Tribunal has had regard to the sentencing remarks of Judge Pickering SC made on 5 August 2022. His Honour refers to the 2020 offences, by reference to the agreed facts, as follows. The police ascertained that a consignment of drugs was collected by another person and taken to a storage unit. On 20 May 2020 the other person and the Applicant drove to the storage unit and were arrested. The examination of the packaging identified the Applicant’s DNA and fingerprints, including his DNA on the inside of the lids of the open boxes. These boxes contained 75 kg of substance that would become prohibited drug. It is noted that the Applicant was present at the storage facility on four occasions. During the search of the other person’s car, 123 grams of cocaine was located. It is stated that the Applicant accepted his guilt for that matter and accepts that he was in possession of the drug, which was in excess of an indictable quantity and substantially above both a trafficable and an indictable quantity. It is stated that the Applicant’s DNA was located upon the interior surface of the plastic releasable lips of the bag that contained the cocaine and on the digital scale.

17. His Honour notes that there is no evidence that the Applicant was involved in the importation of the substance, there is no evidence that he was the owner of the GBL or that he was involved in the supply of the drug. His Honour noted that it is hard to determine the Applicant’s role but stated that the inference can be drawn that he was aware of the drugs and had played some role in assisting the other person in relation to the product. It is stated that by offering a guilty plea, the Applicant accepted that he had involved himself, knowingly, in taking part in a large commercial supply. His Honour determined that the Applicant’s involvement places him at the low range of offending for a matter of this nature (noting, however, that the Applicant was involved over four different days with a substantial amount of 75 kg) but a low range for an offence of this nature is still a serious offence.

18. With respect to the second offence of possession of 123 gm of cocaine, His Honour noted that this is a substantial offence in itself, and the Applicant accepted responsibility for that offence. His Honour stated that there is no evidence to show significant active supply that the Applicant was involved in but the weight of the drugs points to the midrange objective seriousness of the offence.

19. His Honour described the Applicant’s criminal history as not a significant one. His Honour accepted that the Applicant was remorseful and had strong prospects of demonstrated rehabilitation. 

20. The Direction provides that violent crimes are viewed very seriously by the Australian Government and the Australian community. The Applicant’s two convictions in 2009 and 2011 were for common assault and were for conduct of violent nature and the 2016 offence also involved violent conduct. The Tribunal considers these to be serious offences.

21. The other offending related to the possession of drugs. While the Applicant suggests that he was ‘at the wrong place at the wrong time’ and was simply accompanying his friend to the storage facility where the drugs were found, Judge Pickering found that the Applicant was there on four occasions and had greater involvement than suggested. It is also not in dispute that the Applicant was found to be in possession of cocaine.

1. Drugs can cause significant harm to those who use it and to the community and in the Tribunal’s view, drug related offending is very serious. While the Applicant submits that the offending was at the lower scale, noting that his sentence was well below the maximum possible under the law, the Tribunal does not accept that was the case, having regard to the comments of Judge Pickering. The Applicant’s offending was characterised as mid-range for the drug possession offence and while His Honour refers to the lower scale for the supply offence, His Honour points out that for that type of offending, offending even at the lower scale is a serious offence.

2. The fact that the Applicant was given a lengthy term of imprisonment reflect the seriousness of the offence. In the Tribunal’s view, the significant custodial sentence for the most recent offending also reflects the increasing seriousness of the offending, noting that the Applicant was previously fined for his offending, with no conviction recorded for some of the offending. The Tribunal finds that the Applicant had repeatedly engaged in offensive behaviour since his entry to Australia. The Tribunal finds that the offending was of an increasingly serious nature. The Tribunal has formed the view that much of his offending was serious. 

   The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct

3. The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that 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 of the 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.

4. Paragraph 8.1.2(2) provides that 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;

   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 non-citizen 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; and

5. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.

6. The Tribunal has considered the risk of the Applicant reoffending and the evidence of rehabilitation achieved.

7. In his written submission to the Tribunal the Applicant refers to difficult childhood, the experience of family violence and bullying. The Applicant described that he had an operation as a ten year old, had spent a long time in hospital and had a long recovery for which he was bullied and excluded during his schooling years. The Applicant states that he had developed depression at that time. The Applicant states that he felt isolated and emotionally unstable. There was conflicting evidence whether the Applicant had previously attempted self-harm. The Applicant told the Tribunal that he started using alcohol at the age of 11 and drugs at 15, which he was using socially. In his 20’s he continued with social drug use which had intensified in response to the breakup of his relationship.

8. The Applicant states that when he was incarcerated, in 2020 he sought counselling for drugs and alcohol use. The Applicant states that he recognises he has an addiction and the courses he has done help him fight and control the addiction. The Applicant states that he continues to engage in rehabilitation during the detention and continues to receive support. However, the Applicant also told the Tribunal that he relapsed into drug and alcohol use in 2023 while in immigration detention. He told the Tribunal that in May 2023 he used Ice because it was everywhere around him and he was addicted. On the second occasion in June 2023 the Applicant explained to the Tribunal that he was injured, felt that he was without help or support, was not given adequate painkillers by the medical team and he turned to what he knew best. The Applicant explained to the Tribunal that following an injury, he was offered Panadeine Forte but did not think it could deal with his pain and did not want to get another addiction, so he preferred to get Ice. The Applicant also referred to an incident prior to his sentencing when he used drugs.

9. The Applicant suggested that he relapsed into drug use while in detention because of the prevalence of drugs in immigration detention and because he felt he lacked support. With respect to the last incident of relapse, he told the Tribunal that it occurred because he felt sorry for himself, could not see his daughter, and he chose alcohol because ‘he knew it was not as bad as the rest’. The Applicant told the Tribunal that alcohol was not a problem for him, he was not addicted to alcohol and he stopped using alcohol because he ‘did not fancy it’.

10. The Applicant claims that there is only a low risk of re offending, which was accepted by the court (noting that the presentencing report identified the risk of reoffending as medium – low) and that he has made a genuine effort to rehabilitate. The Applicant refers to several programs and courses he has completed and the absence of any incidents while he was on bail (which does not appear to be correct, given his use of drugs prior to sentencing). The Applicant states that there is no history of misconduct in prison or in detention (although he submits the two incidents in 2023 when he relapsed into drug and alcohol use). The Tribunal has been provided with the Applicant’s IHMS records which identify the risk harm to others as low. In oral evidence, the Applicant conceded that the fact that he had not used drugs while on bail and while in prison may have been influenced by the fact that he was on strict bail conditions and drugs not being readily available in jail. Notably, when the Applicant claims drugs are readily available in VIDC, he did relapse into drug use.

11. The Applicant also submits that there are protective factors such as an offer of stable accommodation, his daughter and good employment prospects. The Tribunal finds that submission unpersuasive, noting that these protective factors were also present in the past. The Applicant’s daughter is now 8 years old and some of the more serious offending occurred after his daughter was born. The Applicant had been employed in the past and there is nothing to suggest he did not have, or could not access, stable accommodation. Despite these factors, the Applicant repeatedly engaged in criminal conduct. The Tribunal does not consider that the presence of these protective factors reduces the risk of reoffending.

12. In his written statement the Applicant states that he started drinking alcohol when he was about 11 and using drugs when he was around 15. His drug use was initially recreational but increased when he was about 23-24. The Applicant states that he was using weed, cocaine, ice and sometimes MDMA. When he was 26-27 his drug use was heavier, and he also gambled. The Applicant refers to fighting with his partner and brothers, his partner’s ‘betrayal’ causing him stress and states that drugs and gambling were a form of escape. The Applicant states that from the time he was released on bail in December 2020 he had not used drugs but had two relapses since going into detention. He claims he has not used drugs for a few months.

13. In his statement the Applicant expresses regret for his past offending. He refers to experiencing depression and bullying, affecting his self-esteem. He states that he wanted to see a psychologist in 2022 but did not get a chance as he went to prison, and he is now seeing a psychologist and has undertaken drug and alcohol counselling. The Applicant outlines the programs he has completed since his arrest (he provided to the Tribunal evidence of course participation and course completion) and states that he has been taking antidepressant medication. The Applicant states that he no longer has cravings and if he does, he uses techniques he has learned to stop himself from relapsing. The Applicant has indicated his intention to continue with counselling if he is released from detention, as well as his intention to engage in work and deal with his mental health issue. The Applicant states that he could live with his ex-girlfriend while he gets himself established and his intention to spend time with his daughter.

14. The Applicant states that his girlfriend TS is a source of support for him, checks on him to make sure he is ok and makes sure he can see his daughter. There is before the Tribunal a statement from TS who refers to their past relationship and ongoing friendship and the ongoing support she provides to the Applicant. In his September 2023 statement to the Tribunal the Applicant stated that he and TS stopped seeing each other and he would now make alternative living arrangements upon release from detention and would stay with his parents.

15. In oral evidence the Applicant told the Tribunal he is looking for a property but could live with his parents, he intends to renew the Mental Health Plan and engage in rehabilitation with Odyssey House which he finds useful. The Applicant told the Tribunal that he has learned from his mistakes and has lost a lot.

16. There is also a character reference from MT, the mother of the Applicant’s child and a statement from the Applicant’s mother JR who has expressed support for the Applicant and indicated that he could live with the family if released. JR also gave oral evidence to the Tribunal.

17. The Applicant also repeatedly told the Tribunal that he never had alcohol addiction (even while conceding he was using 10 mixed drinks a day to fall asleep) and does not see the use of alcohol as a problem. The Applicant told the Tribunal that in his mind, drugs and alcohol go together and, in his view, he has a drug issue but not an alcohol issue. It is of concern that the Applicant does not appear to see the use of alcohol, and what could objectively be viewed as an excessive use of alcohol (ten drinks a day) as problematic and capable of affecting his judgment and conduct.

18. The Tribunal has been provided with the Sentencing Assessment Repot dated 12 May 2022. The report refers to the past offending and notes that the Applicant’s criminal history appears to be escalating in nature of offending. With respect to the Applicant’s attitude, it is stated that the Applicant had, in discussions, minimised his involvement in the offences and denied personal responsibility. He disclosed a history of anti-social peer influence. He displayed limited insight into the impacts of the offences for the wider community. It is stated that the Applicant expressed negative and depressive thoughts and a history of self-harm attempts but also a willingness to engage in drug and alcohol intervention to address mental health concerns. It is stated that the Applicant’s response to supervision has been satisfactory, and he was cooperative. The risk assessment is identified as medium-low.

19. The Tribunal has had regard to the psychological report prepared by Danielle Makarious which refers to the Applicant’s participation in a study since June 2021. There is also before the Tribunal a report prepared by Mr Tim Watson-Munro, a consultant psychologist. Mr Watson-Munro outlined the information reported by the Applicant including his social history, drug, alcohol and psychological history. It is stated that the Applicant reported frequent drug use until he was remanded in custody, where he was detoxified, and the Applicant claimed he remained drug free from that time onwards. (That appears to be incorrect as on his own admission, the Applicant relapsed into drug use on at least two occasions while in detention.) The Applicant reported the treatment he had received and claimed that his judgment has improved. Mr Watson-Munro refers to the sentencing remarks of Judge Pickering SC made in August 2022, and to the sentencing assessment report prepared in May 2022.

20. Mr Watson-Munro has expressed an opinion that the Applicant is a cooperative but psychologically troubled man. While he has described a complex development history, Mr Watson-Munro does not offer any independent insight on the veracity of any of the Applicant’s claims. Mr Watson-Munro states that the Applicant has suffered significant symptoms of depression and anxiety and low self-esteem over the years and, with the absence of treatment, drifted into a pattern of substance use as a teenager. Indeed, during questioning, the Applicant told the Tribunal that he had been prescribed medication for depression, stopped using it in 2022, and is waiting to be prescribed it again. It is stated that the Applicant’s ice use has had a dramatic impact upon his judgment, specifically in relation to his impulse control and consequential thinking. Mr Watson-Munro states that the Applicant has detoxified during immigration detention and the issues referable to prior cognitive impairment have resolved somewhat. Yet, no contemporaneous evidence has been offered to the Tribunal to demonstrate that the Applicant, not only had these issues concerning impulse control and consequential thinking, but that these were also as a result of his prior drug and alcohol use. This is particularly important given that the conclusions reached by Mr Watson-Munro regarding the impact of the Applicant’s substance abuse on his cognitive impairment, reference drug and alcohol use that occurred several years prior to his meeting with the Applicant and preparing this report. Since no explanation has been offered as to how these conclusions were reached, or what testing was done, if any, to indicate that the Applicant did have a cognitive impairment in the past, the Tribunal is not satisfied that such a conclusion can be reached simply by reference to prior substance abuse without appropriate assessments being undertaken.

21. Mr Watson-Munro refers to the Community Corrections assessment of reoffending being moderate – low risk and he states that he concurs with that opinion. Mr Watson-Munro states that there are a number of protective factors including the Applicant’s close bond with his family, his increased level of maturity and improved judgment, and the fact that he is now substance free and his willingness to undertaken treatment. Yet, as noted elsewhere, the Tribunal is mindful that many of these factors were present before and did not prevent the Applicant from engaging in criminal behaviour and continuing with the drug use. Mr Watson-Munro has indicated that the Applicant would benefit from supportive and motivational psychotherapy, cognitive behaviour therapy. He has expressed the view that het risk of reoffending is trending from moderate to low.

22. Mr Watson-Munro told the Tribunal in oral evidence that the Applicant is currently experiencing depression and anxiety (stating there is depression but no diagnosis of major depression) by reference to deportation and uncertainty about his future and concerns about his family. Mr Watson-Munro refers to longer term depression and anxiety (by reference to self-reporting, the reports of Mr Borenstein and information in the sentencing report), low self-esteem and alcohol and substance use from a young age, which the Applicant used as a form of ‘self-medication’. Mr Watson-Munro stated that he cannot comment on the Applicant’s past condition but has expressed the view that he may have experienced depression for many years. Mr Watson-Munro has expressed the view that past substance use by the Applicant affected his judgment.

23. Mr Watson-Munro has expressed the view that the Applicant has made improvement, being drug free while in detention and has expressed willingness to move forward. He states that there is no history of psychiatric illness.

24. Mr Watson-Munro has expressed the view that the Applicant’s insight into offending is indicated by Mr Rewiri’s willingness to engage in treatment and not using drugs. His engagement with rehabilitation indicates that the risk is trending from medium to low. Mr Watson-Munro indicated that the Applicant’s success is subject to his ongoing commitment to treatment and remaining drug free. He also refers to protective supporting mechanisms such as the Applicant’s employment, desire to engage in treatment and presence of family. Mr Watson-Munro indicated that the Applicant is now more mature and has insight into the consequences of reoffending.

25. Mr Watson-Munro told the Tribunal that he was not aware of the Applicant’s recent relapses into alcohol or drug use but states that in themselves, relapses are common on the path to recovery and are not indicative of a lack of rehabilitation. Mr Watson-Munro stated that the nature and frequency of relapse and the context of the relapse are relevant considerations. He has expressed the view that two relapses are not unusual and would not necessarily ‘reset the clock’, but it is certain that the Applicant had gone backward in terms of full remission (which is considered to be drug free after two years) and is in partial remission, emphasising the need for further treatment. Mr Watson-Munro, in considering the circumstances of relapses, indicated that his assessment of the future reassessment has not changed, noting the self-disclosure of the relapses, engagement and willingness to continue to engage in treatment and depression affecting past conduct, being indicative of the Applicant’s willingness to change. The Tribunal accepts the professional opinions expressed by Mr Watson-Munro expressed in his reports and evidence to the Tribunal.

26. The Applicant submits that the earlier offending was minor, as noted by the sentencing judge. The Respondent submits that the earlier offending cannot be classified as minor and the fact that the prior offending were offences of violence or drug offences signifies that they are serious offences. For the reasons set out above, the Tribunal had formed the view that past offending, in particular the violent offences and drug related offending were serious offences. The Respondent refers to the Applicant’s breach of bail and his failure to disclose relapses to his counsellor or to Mr Watson-Munro, showing general disrespect for the law. The Respondent submits that Mr Watson-Munro stated that the risk of reoffending is dependent on continuous engagement with rehabilitation and in this case, distinction must be made between desire to rehabilitate, and rehabilitation achieved. The Respondent submits that there is no probative basis for a finding that the Applicant is of low risk of reoffending, as the sentencing report, which refers to ‘moderate to low’ risk, was not based on all the facts, and Mr Watson-Munro even suggested a higher than ‘low’ risk by stating the risk was ‘trending to low’.

27. Having regard to all the evidence, the Tribunal has formed the view that there remains a real risk of reoffending. The Tribunal places some weight on the various professional opinions that identify the risk as being low to medium (or medium trending to low in the words of Mr Watson-Munro). The Tribunal also places weight on the Applicant’s recent relapses when he was faced with difficulties (assault in detention, loneliness, and isolation). The fact that on these occasions, the Applicant claims the strategies he learned in different courses did not work, and he could not control his urge to use drugs or alcohol, suggests that the Applicant may not be completely able to manage his urges, even if he is now better at doing so than he was in the past. The Tribunal has formed the view that there remains a real risk of reoffending, although that risk can be classified as somewhere between medium and low.

1. Having regard to the nature of the Applicant’s past convictions involving violence and drugs, and the risk to the community should the Applicant engage in similar conduct in the future, the Tribunal has formed the view that the protection of the Australian community weighs against the revocation.

   Whether the conduct engaged in constituted family violence

2. Paragraph 8.2 of the Direction provides:

   (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen

3. The Applicant has not been convicted of offending that involved domestic violence and there is no evidence that the Applicant had engaged in conduct that constituted family violence. This consideration is neutral.

   The strength, nature, and duration of ties to Australia

4. Paragraph 8.3 of the Direction provides:

   (1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

   (2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

   (3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely. 

5. In his revocation request, the Applicant stated that he has been calling Australia his home for more than 20 years and has his family in Australia. He has a loving partner who wants a future with him and his daughter. The Applicant described the effect of his visa cancellation upon his partner. Yet, as noted above, that relationship seems to have now ended.

6. The Tribunal accepts that the Applicant had been residing in Australia since May 2003, which is a little over 20 years. He entered Australia with his immediate family, and the Applicant’s parents and three siblings live in Australia. The Applicant also has a daughter born in July 2015 who is an Australian citizen.

7. In oral evidence, the Applicant confirmed that he came to Australia as a teenager and has not left Australia since. He states that he has no contact with anyone in New Zealand. The Applicant states that he has a good relationship with his siblings, but an ‘up and down’ relationship with his parents. The Respondent submits that the Applicant’s relationship with his parents is not close and that reduces the strength of his ties to Australia. The Tribunal does not accept that submission, noting the evidence that the Applicant does maintain a relationship with is parents (and his mother’s evidence supports that) and his siblings, and that he has formed other ties, including social, in addition to the family ties.

8. In his report, Mr Watson-Munro states that the Applicant has a positive relationship with his father and less so with his mother. The Applicant reported that all family members are stressed by the possibility of him being returned to New Zealand. The Applicant’s evidence to the Tribunal is that despite the ‘ups and downs’ of his relationship with his family, they continue to support him and would be devastated if he is deported. The Tribunal acknowledges the oral evidence of the Applicant’s mother.

9. The Tribunal accepts that the Applicant has strong family ties in Australia and that he would have also formed strong social links during his 20 years of residence in this country. The Tribunal has formed the view that this consideration weighs heavily in favour of revocation.

   The best interests of minor children in Australia

10. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.

11. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa, or not to revoke the mandatory cancellation decision, is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

12. The Applicant has a daughter who is presently eight years of age, and he also refers to a close relationship with his nephew. In relation to his nephew, the Applicant stated in his revocation request that his relationship is a typical uncle / nephew one. He states that he tries to guide his nephew on the right path and to make the right choices as the child’s father ‘is not the greatest father figure’. The Applicant claims that he checks on his nephew’s mental health as the boy’s mother had committed suicide.

13. There is insufficient evidence before the Tribunal concerning the Applicant’s relationship with his nephew and the effect on the nephew, should the Applicant’s visa remain cancelled. On the limited evidence before it, the Tribunal does not consider that the nephew’s best interests would be adversely affected by the cancellation of the Applicant’s visa.

14. In his submission to the delegate, the Applicant describes his relationship with his daughter as a close one,  describing the time they spend together and the activities they enjoy. The Applicant states that if he gets a negative decision, life would be hard for his daughter. He states that the child’s mother would not let her travel to New Zealand to see him.

15. In his submission to the Tribunal the Applicant states that his daughter has struggled in his absence and has demonstrated signs of anxiety and depression when told of the possibility that he may be removed. The Applicant submits that there is no prospect that his daughter would relocate to New Zealand if he were removed, given his separation from the child’s mother. The Applicant submits that it is in his daughter’s best interests that the cancellation be revoked.

16. In his statement dated 10 August 2023 the Applicant submits that he had separated from his former partner when his daughter was 11 months old, but he continued to play a role in her life. His daughter would spend every second weekend with him and sometimes on special occasions. The Applicant states that when was on remand, he had video contact with his daughter, which stopped when his ex-partner did not allow it, but he later made new arrangements to spend time with his daughter. His daughter has visited him in prison and at VIDC. The Applicant told the Tribunal that since he separated from his former partner, he had been seeing his daughter as much as he could and since his detention, they had maintained contact, calling each other regularly with his daughter visiting frequently. He states that he has not been able to see his daughter for the past two months since he broke up with his partner who used to bring the child into detention, making it difficult for both himself and the child. the Applicant told the Tribunal that his former partner had re-married and there is a good relationship between his daughter and her step-father.

17. In her statement to the Tribunal MT states that she is concerned that her daughter would be adversely affected psychologically,  should the Applicant to be deported, further stating that their child has shown signs of depression and anxiety after hearing that her father may be deported. MT refers to the strong bond between the Applicant and his daughter and the Applicant being a loving father.

18. The Respondent submits that the weight to be given to this factor is ‘tempered’ by the nature of the Applicant’s relationship with his daughter, being limited to some weekends and sporadic financial support. The Tribunal does not consider this to be an accurate representation of the Applicant’s relationship with his daughter as the evidence suggests reasonably regular contact prior to and during detention. The Respondent also submits that there is no evidence of parental responsibility that the Applicant maintains in relation to his daughter and that the parental responsibilities are fulfilled by the child’s mother and her new partner. While the Tribunal accepts that MT and her new partner maintain primary parental responsibilities in relation to the child, and that the child has always resided with her mother, it has also  formed the view that there remains a close relationship between the Applicant and his daughter, notwithstanding the presence of others in the child’s life.

19. The Tribunal accepts that the Applicant has a close relationship with his daughter and that they have maintained meaningful and regular contact when possible. The Tribunal accepts that the Applicant wants to maintain that relationship. The Tribunal is also prepared to accept the Applicant’s evidence that if he is to live in New Zealand, the child’s mother would not allow the child to travel and visit him. That is, if the Applicant is removed from Australia, the nature of his relationship and the option of maintaining a close relationship with his daughter would be adversely affected.

20. Overall, the Tribunal has formed the view that it is in the best interests of the Applicant’s daughter to maintain a close relationship with her father and that might be difficult if the Applicant is removed from Australia. The Tribunal accepts that it is in the best interests of the Applicant’s daughter if the cancellation of his visa is revoked. That consideration weighs heavily in favour of the revocation.

    Expectation of the Australian Community

21. Sub-clause 8.5 of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:

    ‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’

22. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

23. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

24. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs[3] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]

    [3] [2019] FCAFC 185 (‘FYBR’)

    [4] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

25. Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

26. The Tribunal has formed the view that, given the serious and repeated nature of the Applicant’s conduct and the offences becoming of increasing seriousness over the years, the community expectations would weigh heavily against the revocation.

    Other considerations

    Legal consequences of the decision

27. Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:

    (1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…

28. The Applicant is not a person who is covered by a protection finding. He has not made any claims that could indicate that non-refoulement obligations arise in this case.

29. The cancellation of the visa under s. 501 means that the Applicant will not be entitled to be granted another visa and will not be able to return to Australia to be with his family or for any other reason.

30. The Tribunal is of the view that consideration weighs somewhat in favour of the revocation.

    Extent of impediments if removed

31. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    a)the non-citizen’s age and health;

    b)whether there are any substantial language or cultural barriers; and

    c)any social, medical and/or economic support available to that non-citizen in that country.

32. The Applicant is 35 years of age. The Applicant refers in his submission to a history of mental illness and drug and alcohol addiction which, he claims, would be exacerbated by separation from his family and removal from New Zealand where he has no social or family connections. In his revocation request, the Applicant refers to high blood pressure and diabetes. The Tribunal has been provided with the Applicant’s IHMS records and hospital admission records resulting from an injury sustained while in detention. There is no evidence as to whether medical support would be available to the Applicant in New Zealand, if needed and the Respondent submits that appropriate health services would be available to the Applicant in New Zealand.

33. There are no identified or apparent language or cultural barriers if the Applicant was to live in New Zealand. The Applicant claims he has no connections in New Zealand and the Tribunal accepts that he may not have access to family or social support. There is no apparent reason why the Applicant could not access medical or economic support that one might expect to  be available for all New Zealand citizens.

34. As for the Applicant’s claim that his mental health issues would be exacerbated by separation and removal from his familiar environment, these have not been supported by probative evidence such as an assessment by a health professional. The Tribunal considers such claims to be merely speculative and unpersuasive.

35. The Tribunal finds that these considerations weigh only marginally in favour of the revocation.

    Impact on victims

36. Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

37. There is no evidence before the Tribunal concerning the impact on victim. This consideration is neutral.

    Impact on Australian business interests

38. Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:

    (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.’

39. There is no evidence before the Tribunal concerning any business interests. This consideration is neutral.

    CONCLUSION

40. The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.

41. The Tribunal has formed the view that the Applicant has committed serious offences, being violent offending and offences involving drugs. The repeated offending occurred over a number of years and was of increasing seriousness, as evidenced by the custodial sentence finally imposed. The nature of his past offending is such that the Applicant’s conduct is against the expectations of the Australian community.

42. The Tribunal has found that there remains a risk of reoffending, which is somewhere between medium and low. However, the Tribunal also found the Applicant to show insight into his behaviour in his oral evidence, and the Tribunal has formed the view that, at least at present, the Applicant is genuinely committed to avoiding drug and alcohol use and to rehabilitation. He gave evidence of his intention to continue with rehabilitation programs including with the Odyssey House which he found useful, to remove himself from the anti-social influences and to maintain other protective factors such as employment and family support. The Tribunal accepts that, at present, the Applicant has a genuine intention of engaging in these programs and to not reoffend.

43. Thus, while the protection of the Australian community weighs against the revocation, in the particular circumstances of this case, the Tribunal has decided to give this factor less weight.

44. The Tribunal has formed the view that it is in the best interests of the Applicant’s minor daughter that she is able to maintain her connection and relationship with the Applicant and for him to remain in Australia. This factor weighs strongly against the revocation. The Tribunal has also determined that the strength and nature of the Applicant’s ties to Australia weigh against the revocation, noting in particular the lengthy period of time the Applicant has lived in Australia and the significant family and social connections he has formed in this country. The Tribunal has formed the view that there may be some impediment to the Applicant and his family if he is removed but finds that this consideration weighs only marginally in favour of the revocation.

45. Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of strength, nature and duration of the Applicant’s ties to Australia and the best interests of his child, which weigh strongly in favour of revocation. In the particular circumstances of this case, the Tribunal has decided that these considerations outweigh other considerations. 

46. The Tribunal has decided that there is another reason why the cancellation should the revoked. The Tribunal has decided to set aside the decision under review and substitute the decision to revoke the cancellation of the visa held by the Applicant.

    DECISION

1. The Tribunal sets aside the reviewable decision and substitutes a decision that the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked..

I certify that the preceding 115 (one hundred and fifteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kira Raif

..........................[SGD]..............................................

Associate

Dated: 20 September 2023

Date(s) of hearing:	13 and 14 September 2023
Solicitors for the Applicant:	Gregory Rohan, Legal Aid NSW
Solicitors for the Respondent:	Jessica Xiao, Clayton Utz