Sanderson and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1903

Sanderson and Minister for Immigration and Border Protection (Migration) [2017] AATA 1903 (24 October 2017)

Division:GENERAL DIVISION

File Number:           2017/4948

Re:Deane Sanderson

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:24 October 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member T. Tavoularis

MIGRATION – non-revocation of mandatory cancellation of visa – visa was cancelled under s 501(3A) because the Applicant did not pass character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – Considerations in Direction No. 65 - Expert opinion provided about risk of re-offending – dependent wife – discretion should not be exercised to revoke visa cancellation – decision under review affirmed.

Legislation

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

Cases

Lau and Minister for Immigration and Border Protection [2017] AATA 138
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)

REASONS FOR DECISION

Senior Member T. Tavoularis

24 October 2017

INTRODUCTION

1. This matter relates to an application for review filed by Deane Sanderson (“the Applicant”) on 18 August 2017. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 9 August 2017. The delegate’s decision, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), was not to revoke the original cancellation decision.[1]

   [1] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).

2. The Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(ba) of the Act.

   BACKGROUND

3. The Applicant is a 59 year old citizen of New Zealand. He first arrived in Australia in 1977 aged 19 years. He has since returned to New Zealand on at least three occasions for short visits (averaging about a month each time).[2] The Applicant last re-entered Australia on 9 February 2002 and was granted a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) upon arrival.[3] He has been here since that time.

   [2] See movement records at Exhibit 6, G33, p 219.

   [3] See Exhibit 6, G33, p 219.

4. The Applicant has had a tumultuous time since being in Australia. In 1999 the Applicant and his current partner were travelling from Cairns to Port Douglas and were involved in a horrific motor vehicle accident, which resulted in severe injuries to both of them. As a result of that accident the Applicant received financial compensation in 2002 in the order of $1.7 million. The Applicant invested a large portion of that money but unfortunately for him those investments were not successful due, inter alia, to the global financial crisis and a failed motel/resort type venture.

5. The Applicant and his wife were forced to return to the workforce to meet financial demands. In order to cope with the demands of work and management of his chronic pain, the Applicant says he increasingly relied on illicit substances, which ultimately led to him supplying, possessing and producing dangerous drugs. He was charged and sentenced to imprisonment for those drug offences and his visa was consequently cancelled by the Minister.

6. This matter concerns the circumstances surrounding the mandatory cancellation of the Applicant’s visa and the subsequent refusal of the Minister’s delegate to revoke that cancellation.

7. On 1 February 2017, the Minister cancelled the Applicant’s visa under s 501(3A) of the Act.[4] His visa was cancelled because he had a substantial criminal record and therefore did not pass the character test by virtue of ss 501(7)(c) and 501(6)(a). Additionally, he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth or a State or Territory.

   [4] See Exhibit 6, G3.

8. The Applicant was invited to make submissions in favour of revocation of the mandatory visa cancellation decision.[5] On 27 February 2017, the Applicant (via his representative) lodged a request for revocation and a personal details form.[6] On 31 March 2017, under the hand of his representative, the Applicant provided a letter, a Queensland Court Outcomes Report, letters of support from friends and family, other documents and submissions for revocation.[7] On 12 April 2017 the Applicant supplied additional letters of support.[8]

   [5] In accordance with s 501CA(3)(b) and 501CA(4)(a) of the Act.

   [6] See Exhibit 6, G5, G15 and G16.

   [7] See Exhibit 6, G7, G15-17, G19-25, G32

   [8] See Exhibit 6, G8, G26-31

9. On 21 April 2017, the Department wrote to the Applicant and his representative acknowledging receipt of their submissions for revocation and inviting them to make any further representations in relation to new information the Department had received, namely the National Police Certificate dated 16 November 2016.[9]

   [9] See Exhibit 6, G9, p 83.

10. By way of response, on 26 April 2017 the Applicant provided a psychological assessment and report by Dr Luke Hatzipetrou. That report is dated 20 April 2017.[10]

    [10] See Exhibit 6, G10 and G18, or Exhibit 8.

11. On 9 August 2017, a delegate of the Minister considered the matter and decided not to exercise the discretion in s 501CA(4) to revoke the visa cancellation decision.[11] The Applicant acknowledged receipt of that decision on 17 August 2017.[12]

    [11] See Exhibit 6, G11, pp 88-101.

    [12] See Exhibit 6, G12, 102.

12. On 18 August 2017, the Applicant applied to this Tribunal for review of that decision.[13]

    [13] See Exhibit 6, G2, pp 3-13.

    ISSUES

13. The issue I must consider is whether in the circumstances of this case the discretion in

    
    

    s 501CA(4) of the Act should be exercised in favour of revoking the cancellation of the Applicant’s visa.

14. When making a decision on whether to exercise the revocation discretion in s 501CA(4) of the Act, there are two issues a decision maker must consider:

    (i)whether the Applicant passes the “Character Test” as defined in s 501 of the Act; or

    (ii)whether there is another reason why the mandatory cancellation decision should be revoked.

15. The Minister contends that the Applicant does not pass the character test and that the correct and preferable decision is to not revoke the mandatory cancellation of the Applicant’s visa.[14]

    [14] See Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) at [3] and [21].  

16. I will consider each of these issues in turn.

    ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?

17. Both parties concede it is uncontentious that the Applicant does not pass the character test.[15] For the sake of completeness I will briefly address this issue.

    [15] See Exhibit 1, Applicant’s SFIC at [28]; and Exhibit 2, Respondent’s SFIC at [21]; and oral evidence at hearing.

18. At the hearing, I confirmed that the parties agree about the nature and extent of the Applicant’s offending. As previously mentioned, that offending is set out in the Applicant’s National Police Certificate.[16]

    [16] See Exhibit 6, G13, pp 103-105. 

19. Whilst residing in Australia, the Applicant has been convicted and sentenced for 23 criminal offences. Most of those convictions being in respect of drug possession, production and supply. Most notably, the Applicant was sentenced in the Supreme Court of Queensland on 21 September 2016 for the following offences (his “2016 offences”):

    ·Twelve charges of supplying a schedule 1 dangerous drug (methyl amphetamine), for which he was sentenced to two years and three months imprisonment;[17]

    ·One charge of  possessing a schedule 1 dangerous drug (methyl amphetamine), for which he was sentenced to 18 months imprisonment;

    ·One charge of producing a schedule 2 dangerous drug (cannabis sativa), for which he was sentenced to 12 months imprisonment;

    ·Two related summary charges of possessing anything used in the commission of a crime, for which he was not further punished.

    ·The two year three month period of imprisonment stipulated in the first bullet point of this paragraph constitutes the head sentence. The sentences outlined in the first, second and third bullet points are each to be served concurrently with the head sentence of two years and three months.

    [17] I note that there is a slight conflict between the sentencing remarks of Justice Mullins and the content of the National Police Certificate. Justice Mullins (G14, p 112) sentenced the Applicant to a head sentence of 2 years and 3 months imprisonment. The National Police Certificate (G13, p 103) records a head sentence of 2 years only to be suspended for 3 months.

20. The Applicant has additional criminal history dating back to 1995 for which he was variously sentenced at the Bundaberg, Cairns and Brisbane Magistrates Courts. It can be particularised as follows:

    ·     28 September 1995 – unlawful possession of dangerous drugs (cannabis sativa and methyl amphetamine) – fined $500;

    ·     3 July 1996 – possession of weapon while not being the holder of the necessary licence – fine $150, plus payment of court costs $49.25;

    ·     31 May 2004 – possession of dangerous drugs and possession of utensils / drug paraphernalia – convicted and fined $1,000.

    ·     20 August 2007 – possession of dangerous drugs, production of dangerous drugs, possession of anything for use in the commission of a crime – convicted and fined $1,500.

21. The character test is defined in s 501(6) of the Act. It provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is

    
    

    s 501(6)(a), under which a person does not pass the “character test” if they have a “substantial criminal record” as defined in s 501(7). According to s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.

22. Having regard to his criminal history, it is clear the Applicant has been sentenced to more than 12 months imprisonment. There is no doubt the Applicant has a “substantial criminal history” within the meaning of s 501(7)(c) of the Act, such that he does not pass the character test.

23. I must therefore move on to the next question: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.

    ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

24. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:

    “…a decision maker: must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.” [18]

    [18] Direction No 65, paragraph 7(1)(b).

25. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

26. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

27. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

28. Paragraph 6.3 of the Direction sets out at a number of principles that should inform the decision maker’s consideration. I note that these principles have been accurately cited at paragraph [18] of the Respondent’s Statement of Fact’s Issues and Contentions.[19]

    Primary Consideration A:  Protection of the Australian Community from Criminal or Other Serious Conduct.

    [19] See Exhibit 2.

29. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:

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

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

    (a) The Nature and Seriousness of the Applicant’s Conduct to Date

30. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly (for present purposes), amongst those factors are: (i) the sentence imposed by the courts for a crime or crimes; (ii) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and (iii) the cumulative effect of repeated offending.

31. The totality of the Applicant’s conduct to date is undoubtedly of a serious nature. To his credit, the Applicant conceded the seriousness of his offending at the hearing. In my view, his offending can be viewed as both serious and reasonably consistent. There seems an underlying lack of insight in the Applicant as to the extent of his historical difficulties with illegal substances. This lack of insight seems borne out by reference to the evolution of his offending as it appears in his criminal history.[20]

    [20] See National Police Certificate at Exhibit 6, G13, pp 103 – 105.

32. It is not possible to ignore the seriousness of his history. There is a record of 23 offences committed during his time in Australia and, on any reasonable view, the offending seems to be increasing in severity. At the hearing, the Applicant sought, somewhat artificially, to explain his earlier offending (ie. prior to his 2016 offences) on the basis that much of it was connected to his recreational pursuits and interests. There was evidence, for example, about him readily partaking in illegal substances when attending music festivals/concerts and other events such as car or motorbike shows. What is of concern for present purposes is the concerning trend of seriousness in the offending between 1995 and about 2007.

33. His offences in 1995, 1996, and 2004 can, on the most generous basis for the Applicant, be viewed as the offences of a miscreant youth or put another way, someone who may perhaps not be all that youthful but has simply failed to act his age. The offences during this period are technically illegal acts that solely concern the Applicant. For example, there are several possession of unlawful drug offences together with possession of drug utensils and/or paraphernalia. There is also by way of further example, the possession of a “weapon” which as I recall the evidence constituted little more than a pocket knife, which was not even a flick knife.

34. While an excuse can be found for this type of offending and while such an excuse may have a modicum of logic behind it, the concerning trend of seriousness emerges in 2007. As part of the group of offences for which he was sentenced in August 2007, there is one charge of production of dangerous drugs. I view his conviction on this charge as a prelude to his more significant bundle of offences for which he was sentenced in the Bundaberg Supreme Court of Queensland in September 2016.

35. The group of offences that came before Her Honour Justice Mullins in September 2016 have been particularised earlier in these reasons. The marked increase in seriousness or severity of the offending is self-evident. What is also quite informative are certain of the sentencing remarks of Her Honour, made while sentencing the Applicant in 2016. Of particular note with regard to comprehending the seriousness of this group of offences are the following factors:

    ·     The Applicant was originally charged with the even more serious offence of trafficking in dangerous drugs. However, and fortunately for him, negotiations were undertaken by his legal representatives with the Crown resulting in an agreed schedule of facts such that the spectre of being sentenced for trafficking was removed.

    ·     At the time the Applicant was detected, the police were targeting unlawful drug activity in the Agnes Waters and 1770 regions and as a result of those investigations the Applicant came to the attention of the police. At the hearing, the Applicant sought to downplay his detection, as in some way, an incidental result of the investigation. I have misgivings about that evidence in circumstances where the police took specific steps, personal to this Applicant, to acquire necessary evidence to ground the charges eventually proffered against him. His detection was not the result of a broad investigation with him being joined into the outer extremities of its orbit. On the contrary, the police obtained a telephone interception warrant, specifically for both the Applicant and his co-accused. The police also went to the effort of obtaining a further warrant to install a surveillance device in a shed of his co-accused. Further, the police executed a tactical interception on the Applicant’s co-accused. In all, the surveillance and the intercepts yielded evidence of 12 separate occasions on which the Applicant supplied drugs to his co-accused.

    ·     In addition, the level of apparent sophistication and attempt to conceal the offending behaviour was not missed by Her Honour who noted the intercepted drug-related conversations between the Applicant and his co-accused were “… subtly coded in the main.”[21]

    ·     At the hearing, the Applicant said the charges relating to his possession of cannabis sativa were somehow incorrectly transcribed and he was only found to be in possession of a few marijuana plants. This is not how Her Honour sentenced him. Her Honour noted:

    “The quantity of plants was 68 and it’s the weight that was relatively modest that indicates that the plants must have been small. I am told that they were overgrown with grass. The amount of cannabis sativa that was weighed for the purpose of count 13 on the indictment was 774 grams. That’s why you have been charged with the circumstance of aggravation.”[22]

    [21] Exhibit 6, G documents, G14, p 108.

    [22] Exhibit 6, G14, p 109.

36. To be fair to the Applicant and to ensure his 2016 sentencing regime is stated in a balanced way, I should point out that for the purposes of my present consideration, I can only assess the nature and seriousness of his 2016 offences on the basis of the charges that actually went before the Supreme Court. That said, even if one notes the absence of the trafficking charge, it is difficult to escape the conclusion that the totality of both his 2016 offences and much of his earlier offences are, indeed, serious.

37. Further on this theme of fairness to the Applicant, it should be noted that my consideration as to the seriousness of his offending will not include an element of commerciality. However, the Applicant once again sails very close to the wind with regard to this commerciality element. Justice Mullins almost issued the necessary certificate pointing to commerciality:

    “For the purpose of the serious drug offence certificate, even though in the form that the certificate has been presented to me, I am not actually issuing the certificate for the possession of methylamphetamine in excess of two grams, if it otherwise became relevant, I would find that your possession was for a commercial purpose as well as for the personal use.” [23]

    [23] Exhibit 6, G14, p 109.

1. The level of seriousness of the offending under review can also be gauged by the multiple terms of imprisonment the Applicant received in 2016. All of his offending prior to that was punished by way of fines with the usual default “imprisonment” time if the fines were not paid.

2. On the other hand, his head sentence was for the not inconsiderate period of two years and three months. As I read his criminal history, he served 28 days in pre-sentence custody from 14 March 2015 until 10 April 2015. He was then sentenced on 21 September 2016 and went into custody on that day and he was given a parole release day of 24 March 2017. Following completion of his sentencing time for the criminal matters, he immediately went into immigration detention.

3. There can be no argument against the proposition that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. In my view, the nature and extent of the sentencing regime imposed on him in September 2016 is reflective of the objective seriousness of his offending and the extent to which the 2016 offences represented a very significant escalation in the offences he had committed before that time.

4. Notwithstanding the absence of physical violence or sexual elements in the offending, the Applicant was nevertheless convicted of a serious crime involving the supply of dangerous drugs.[24] There is no question of our community’s serious views about the social impact and adverse consequences resulting from this type of offending. This view is endorsed by the Tribunal. As was noted by Deputy President Kendall, the scourge of methyl amphetamine abuse in our community is of such proportions that it can be viewed as nothing else but serious. The learned Deputy President noted: “Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime.”[25]

   [24] See Direction No. 65 at paragraph 13.1.1(1)(a).

   [25] Lau and Minister for Immigration and Border Protection [2017] AATA 138 at [46].

5. I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the totality of the Applicant’s offending is of a serious nature and that it can only be viewed seriously in terms of its overall impact on the community.

   (b) The Risk to the Australian Community should the Applicant continue to commit further offences or engage in other serious conduct

6. Paragraph 13.1.2(1) provides that a decision maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors in paragraph 13.1.2(2). They are:

   (i)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (ii)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

   The Nature of Potential Future Harm

7. As mentioned earlier, the Applicant is 59 years of age with an offending history running for in excess of 21 years. Assuming he first committed an offence when aged 37 years, it is reasonable to assume that he has had more than ample opportunity to cease / curb / desist from further offending. This is not what has occurred. For example, he could have kept his offending to a minimum or even nil during his middle age of 40-55, but the offending has continued and, indeed, has escalated. His economic difficulties and stricture, while understandable and appreciable, cannot constitute any form of excuse for the offending well into the middle-age years of the Applicant. This must be the finding regardless of whether (1) the Applicant continued his offending for the purposes of (on his evidence) minimising the personal discomfort resulting from injuries sustained in the 1999 motor vehicle accident, or (2) whether he committed the offences to augment his diminishing income as a result of the failed Mackay resort venture.

8. Given the prevalence of offending throughout his age bracket of 37-58 years, it is not surprising that there is minimal or no evidence about him submitting to any formal treatment or rehabilitation process. There is the somewhat hollow assurance (from the Applicant only) that he will not re-offend but that alone surely cannot be sufficient to convince a decision maker that he is of no risk to the Australian community.

9. There seems a clear pattern in the conduct of the Applicant such as to indicate a lack of insight into the nature of his offending. As alluded to earlier, I have misgivings about his evidence to the effect that most, if not all of it, derived from recreational use and that his 2016 offences did not contain at least a modicum of profit-derived intent and purpose. While he has not demonstrated a blatant disregard for lawful authority, he has nevertheless received warnings from sentencing courts from the mid-1990s until 2007 about the nature of his (drug) offending. To repeat my earlier comments, all of his offending up until 2007 was punished by fines. There can be little doubt the Applicant would have known that any further – and significant – drug offending, would have placed him at very real risk of receiving a custodial sentence. For a middle aged person to adopt a pattern of offending resulting in his current circumstances, is to my mind, surprising. In addition, the Applicant talks about having “learnt his lesson” but there is little in the evidence to convince me that the escalation of the offending has reached a peak.

10. Having regard to the nature of this past conduct (especially his 2016 offences), I am of the view that should he reoffend in a similar manner, he would pose a significant risk to individuals in the Australian community. At the hearing he spoke of only supplying unlawful substances to his co-accused and that as a consequence, his supplying offences should not be regarded as all that serious. That submission goes nowhere for one primary reason: even if that submission is accepted, the drugs the Applicant supplied to his co-accused would no doubt have reached an end-user with potential adverse and disastrous consequences for that end-user. As was pointed out by the Applicant’s wife in her evidence, he also readily supplied drugs to her, which she admitted to taking in the past.

11. His oblivious disregard for the suffering and other adverse consequences arising from the unlawful substances he supplied to his co-accused is indicative of the low regard in which this Applicant holds the interests of other people in the community. Were he to resume this type of offending (let alone were it to be escalated) it could result in members of the Australian community suffering anything from financial loss, serious physical and/or psychological injuries to, conceivably, death.

12. There is not only the risk of harm to individuals but the emotional and financial burden to be carried by the Australian community that is such a significant adverse consequence of drug offending. Were he to re-offend, the community would have to carry the cost of (1) increased resources to law enforcement to prevent those crimes, (2) the justice system to punish those crimes, and (3) the public health system to medically treat and remediate affected patients resulting from those crimes.

13. Taking into consideration the nature of his previous offending – especially his 2016 offences - I consider that the nature of potential future harm he may cause to members of the Australian community is great.

    Likelihood of engaging in further criminal or other serious conduct

14. Though I recognise that the Applicant contends he is a changed man, that he has learnt his lesson, and that he is no longer interested in drugs, I cannot find that he poses no risk of future harm. His contentions in this regard are unsubstantiated. Whilst I recognise that the Applicant says that the spectre of deportation will have a lasting impact on his behaviour, I do not consider this sufficient ground for finding that he is not likely to reoffend.

15. There is little in the form of convincing evidence before the Tribunal to indicate the completion of any course of formal rehabilitation. Mention should be made of the lengthy report obtained from the psychologist, Dr Luke Hatzipetrou.[26] Dr Haztipetrou made certain findings which point to a suggestion or willingness on the part of the Applicant to engage in some kind of treatment process to alleviate both his reliance on drugs and his preponderance towards offending in this regard.

    [26] See Exhibit 8, or Exhibit 6, G18.

16. Dr Haztipetrou relevantly noted the following:

    ·     “According to [the Applicant], he did not experiment with heroin, yet misused amphetamines in 1985. At that stage, he was unaware of “ice”. Notably, he did not continue the social misuse of amphetamines following this experimentation.”[27]

    ·      “In contrast, [the Applicant] reportedly relapsed on amphetamines after the collapse of the motel business. [The Applicant] was required to return to work and repay the mortgage on his house. However, he experienced persistent feelings of fatigue due to his chronic disability associated with his injuries. Moreover, he was undertaking physical and labour intensive work. As such, he reportedly ingested “a scoop of ‘speed’” and noted an immediate analgesic effect and an energy rush. [The Applicant] recalled the effects of this amphetamine substance were positively reinforced as he was able to continue working throughout the day. To this end, he worked on the tractor and slashed on a daily basis whilst ingesting amphetamines during the day.”[28]

    ·     “[The Applicant] had identified the environmental and internal factors that contributed to the misuse of amphetamine substances and understood his psychological reliance to cannabis. Conversely, [the Applicant] demonstrated a shift in attitude toward illicit substances and was willing to partake in psychoeducational and counselling intervention to support his endeavours to abstain from these substances.”[29]

    ·     “Whilst [the Applicant] did not present with severe mental health problems prior to his incarceration, there was evidence of a chronic cannabis dependency disorder, which is currently in remission.”[30]

    ·     “[The Applicant] accepted his actions were unlawful and abhorrent. To this end, he understood the financial gain he had achieved through this behaviour as he did not maintain the abuse of these substances with his own finances.”[31]

    ·     “… the findings suggest that [the Applicant’s] abuse of methyl amphetamines and cannabis had intensified and he was unable to afford regular access to these substances. At the time of the interview, [the Applicant] did present with signs and symptoms of a polysubstance abuse disorder currently in remission.”[32]

    [27] See Exhibit 8, Report of Dr Like Hatzipetrou, p 7.

    [28] Exhibit 8, pp 7-8.

    [29] Exhibit 8, p 8.

    [30] Exhibit 8, p 10.

    [31] Exhibit 8, p 12.

    [32] Exhibit 8, p 14.

17. Dr Hatzipetrou concludes his findings with an assessment of the Applicant’s risk of re-offending: “[The Applicant’s] risk of re-offending in general is likely to be low to low/moderate.”[33] Taken in totality, Dr Hatzipetrou’s usual fulsome and helpful report goes as far as indicating the Applicant is aware of his polysubstance abuse issues and that he does seem to genuinely hold an intention to involve himself in appropriate counselling and/or therapy to address those issues.

    [33] Exhibit 8, p 16.

18. To my mind, the current state of this Applicant’s issues with polysubstance abuse is still live and unresolved. As a consequence, in the absence of any confirmation from Dr Hatzipetrou that (1) a given treatment regime had been commenced and concluded (or was near conclusion), and (2) an assessment of the Applicant’s condition post-completion of such course of therapy, I cannot make a definitive finding that this Applicant’s polysubstance abuse issues have been resolved or rehabilitated to such an extent that he no longer constitutes an unacceptable risk of harm to the Australian community.

19. This Applicant’s social milieu does not lend itself to convincing me that he will not return to a life strongly influenced by illicit drugs. He is from a small community where there seemed to be “… normalisation of drug use amongst people who were known to [the Applicant], such as [the co-accused] and his friends.”[34]

    [34] Exhibit 6, G14, Sentencing remarks of Justice Mullins, p 111.

20. I do not discount the content and findings appearing in Dr Hatzipetrou’s report. Rather, and to be clear, I consider that this Applicant has a significant distance to travel – in terms of remedial therapies and treatments for his polysubstance abuse issues – in order to convince a decision maker that he is of no risk of reverting to his previous criminal conduct.

21. In consideration of the above factors, I determine that primary consideration A weighs strongly in favour of not revoking the mandatory cancellation of the Applicant’s visa.

    Primary Consideration B: The Best Interests of Minor Children in Australia Affected by the Decision

22. The Applicant does not have any children of his own. The parties conceded that there are no relevant children for the purpose of this primary consideration.

    Primary Consideration C: Expectations of the Australian Community

23. I turn now to the final primary consideration: the expectations of the Australian community.  In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect.

24. The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Taking into account the Applicant’s unresolved issues with polysubstance abuse, the escalation in the severity of his offending between 2007 and 2015, and the quite serious nature of his offences for which he has been charged and convicted in 2016, there is, to my mind, little or no doubt that the Australian community would expect that this Applicant should not hold a visa.

25. I was not convinced or impressed by the Applicant’s evidence seeking to downplay or minimise the nature and extent of the offences for which he was charged and convicted in 2016. I have misgivings about entirely excluding a component of commerciality behind the offending. He spoke of readily being in a position to “go for a drive” to meet someone from whom to purchase what has transpired to be a not insignificant quantity of illicit drugs. These drugs were then supplied to his co-accused who, in turn supplied the drugs to the broader community. The Applicant’s capacity to “go for a drive” to readily purchase drugs, while not necessarily conclusive of anything, must surely point to a higher level of involvement in the drug trade than say, the average recreational user – such as for example, a young person who attends a once a year summer music festival and ingests a minimal amount of drugs at the festival to be ‘part of the scene’.

26. I was similarly not convinced or impressed by the Applicant’s purported minimisation of his drug supply activity by his telling the Tribunal that he only supplied drugs to his co-accused. As mentioned above, this is a disingenuous comment because the Applicant very well knows the drugs he supplied to his co-accused could have adversely affected any number of people in the community. This evidence purportedly minimising his drug supply activity went nowhere for the purposes of my consideration.

27. Bearing in mind that this is a 59 year old Applicant, I was surprised that he had not taken any heed of efforts by governments at all levels to broadly message the adverse and frequently disastrous effects of the drug trade on our community. Given his age and his involvement with illicit drugs, one would have expected the Applicant to have at least been influenced by the government’s messaging – even to a small extent. Yet his offending gives no indication of this.

28. I am compelled to comment on a certain submission made by the Applicant’s representative at the hearing. A summary of the submission appears at paragraphs [36] and [37] of the Applicant’s Statement of Facts and Contentions.[35] The basic thrust of the submission seems to derive from the Applicant’s nationality. The submission is that as at 2009, 38% of the 529,000 New Zealand nationals in Australia reside in Queensland. Further, it was urged upon me to take into account that 529,000 New Zealand nationals form part of the Australian community and that:

    “… any consideration of ‘what the community wants and expects’ needs to address the position of New Zealanders in Australia as opposed to other groups as the relationship between Australia and New Zealand is unique.”[36]

    [35] See Exhibit 1, at [36]-[37].

    [36] Exhibit 1, at [36].

29. It was further submitted that any visa cancellation decision of a person with New Zealand nationality “…must be considered very closely and in the circumstances where it affects people who form a significant part of the Australian community.”[37]

    [37] Exhibit 1, at [37].

30. I have grave difficulty in (1) comprehending the relevance of the submission to my consideration of this Primary Consideration C (or any other aspect of this decision), and (2) applying it in any way to the issues before me. The submission surely goes nowhere. Expressed as a percentage, 529,000 is 2.2% of Australia’s current population of approximately 24 million people.[38] Is it seriously being propounded that a separate method of weighing up Primary Consideration C ought be applied to this Applicant because his nationality represents 2.2% of the total Australian population? I think not. 

    [38] See Australian Bureau of Statistics, “Population clock”, found at:

31. On the contrary, this Primary Consideration C must be assessed on the basis of the expectations of the entire Australian community with no special allowance or allocation for 2.2% of our population – whatever grouping that small percentage may represent. That 2.2% of the population is required to submit to the laws of this country and to meet the expectations of its citizens.

32. The real question with respect to this Primary Consideration C is surely whether the Australian community as whole would expect that a non-citizen with the Applicant’s history of offending should retain the right to remain in Australia. 

33. Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory visa cancellation.  I find this consideration weighs strongly in favour of non-revocation.

    Other Considerations

34. It is necessary to look at the other considerations listed at paragraph 14 of the Direction.[39] I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e). I address each in turn.

    [39] Direction No 65, paragraph 14(1).  

35. With reference to other consideration (a) – International Non-refoulement obligations – There has been no submission that this consideration is of any relevance in this case.

36. With reference to other consideration (b) – Strength, nature and duration of ties to Australia – the Applicant has been in Australia on virtually a continuous basis since he was 19 (for approximately 40 years). The further contention of the Applicant is that “His whole family lives in Australia including 2 brothers, 2 sisters, 2 nieces and 1 nephew and 8 great nieces and nephews.”[40] As I recall the evidence, there was an absence of anything from the Applicant detailing the closeness or otherwise of those familial relationships.

    [40] Exhibit 1, Applicant’s SFIC, at [16].

1. The Respondent accepts that the Applicant is married to an Australian citizen who suffers from serious permanent disabilities including a leg amputation and a recurring golden staph infection in her arm. These injuries derive from the very serious motor vehicle accident in 1999. I concur with both the Applicant’s submission and the Respondent’s concession that non-revocation will have some impact on the Applicant’s wife in Australia.

2. I further note that with the help of local friends and associates and, at times, her brother, the Applicant’s wife has been able to meet her day to day living requirements without the Applicant while he has been in custody for his criminal offending and now in immigration detention. In his evidence, the Applicant spoke of any return to New Zealand being “… the end of my marriage and life as I know it.” This did not accord with the wife’s evidence who did not speak of such terminal consequences. Her evidence was not so much about the end of any marriage or life but more about a difficulty in re-establishing friendships, social connections, and finding employment. I would concur with the view that perhaps the most difficult issue facing both the Applicant and his wife in any relocation to New Zealand would be in (1) him being able to work for himself, as he does here, and (2) her finding work in the same kind of jewellery business that currently employs her.

3. Mention should also be made of the statutory declaration[41] and corresponding evidence provided by the Applicant’s wife at the hearing. At paragraphs [10] to [14]  of her statutory declaration the Applicant’s wife spoke of the close relationship she has with her aging parents, her two brothers, four nieces and a grand-niece.  

   [41] See Exhibit 4.

4. Both in her statutory declaration and oral evidence the Applicant’s wife spoke of the increasing frailty of her father in particular. Her parents live alone but she gave evidence of a possibility that either or both her parents may come to live with her in the future. She also spoke of a “… particularly close and special bond…” with her nieces and grand-niece. While I do not doubt the cordial and loving relationship that exists between her and her nieces and grand-niece, she told the hearing that the extent of her personal contact with them, was at most, once per year, and that the primary mode of contact was by email and/or telephone. I do not consider there would be any significant disruption to this level and regularity of this contact were the Applicant’s wife to reside in New Zealand with the Applicant.

5. I mention the evidence of the wife mostly for the sake of completeness. In the final analysis, any application of this other consideration strictly relates to the Applicant and not his wife. 

6. I would therefore concur with the Respondent’s concession that applying this consideration may weigh in favour of revocation, but I am not of the view that it would outweigh Primary Considerations A and C which favour non-revocation.

7. With reference to other consideration (c) – Impact on Australian business interests – there was no suggestion that any Australian business interests would be impacted if the Applicant’s visa cancellation is not revoked. This particular other consideration is of no weight to my consideration.

8. With reference to other consideration (d) - Impact on victims – there is no specific evidence about the impact on any victims of the Applicant’s offending.  

9. With reference to other consideration (e) - Extent of impediments if removed - the Applicant contends that due to his age, residual physical difficulties and not knowing anyone in New Zealand it would be difficult for him to resettle there.

10. The Respondent acknowledges that relocation to New Zealand would not be entirely straightforward for the Applicant. The Respondent concedes that if forced to relocate, the Applicant would be separated from his wife (unless she went with him) and that he may experience some financial and emotional hardship.

11. In considering what weight, if any, should be allocated to this other consideration I have had regard to the factors in paragraph 14.5 of the Direction. These factors include: (a) the Applicant’s age and health; (b) whether there is a substantial language or cultural barrier; and (c) any social, medical and/or economic support available to him in that country. Relevant reference can be made to the Tribunal’s comments in Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301. That matter also involved the potential return of an applicant to New Zealand:

    “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand... [He has previously lived there and visited on occasion]... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.”[42]

    [42] Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301 at [101] per SM Kelly.

12. With particular reference to this Applicant, I am mindful that his age and state of health may constitute a barrier to his readily being able to find employment in New Zealand. As against that, there is no substantial language or cultural barrier that he will confront, and equivalent social, medical and/or economic support will be available to him there as it would be in Australia. While this decision is not determinative on the issue of reciprocity of social security entitlements between Australia and New Zealand, I recall from the hearing that the Applicant and/or his wife are in receipt of a partial disability pension in Australia. There would, I expect, be reasonable prospects that these payments would be maintained were they to reside in New Zealand.

13. I consider that this fifth other factor is of minimal weight in favour of the Applicant.  

    CONCLUSION

14. There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in Direction No. 65.

15. Primary considerations A and C weigh strongly in favour of non-revocation. Primary Consideration B is not relevant and holds no weight. I consider that ‘Other Considerations’ (b) and (e), combined, do assist the Applicant to some degree, but certainly not to the extent they would outweigh the Primary Considerations which favour non-revocation.

16. I find that the decision of the Minister’s delegate was the correct and preferable one.

    DECISION

17. For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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

Associate

Dated: 24 October 2017

Date of hearing:	19 October 2017
Counsel for the Applicant:	Mr Liam Burrow
Solicitor for the Applicant:	T. Fisher, Fisher Dore Lawyers
Solicitor for the Respondent:	L. Helsdon, Sparke Helmore Lawyers